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MUL T I L AT ERAL

L EGALRESEARCHGROUP ONT HEL EGALS T AT US OFS AMES EXCOUPL ESI NT HEEU

EL S AAms t er dam EL S AL ux embour g EL S AT hes s al oni ki


Multilateral Legal Research Group on the Legal Status of Same-Sex Couples in the European Union «Cross-Border Recognition and Free-Movement Issues»

ELSA Amsterdam ELSA Luxembourg ELSA Thessaloniki

April 2016

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OUR TEAM INTERNATIONAL COORDINATION TEAM: Iga Mlynarczyk Chrysa Solaki Efthymios Sourvas Eva Verdonk Despoina Ziana

ACADEMIC COORDINATORS Iga Mlynarczyk Efthymios Sourvas Eva Verdonk

NATIONAL RESEARCHERS Georgia Bakatsia Anastasios Charalampous Victoria Christou Alexia-Nefeli Dumas Ana-Teodora Iacob Victoria Kalogeratou Erik Kamenjaševic Sotiris Kanarakis Jordi Martínez i Carrasco Konstantina Meletiadou Iga Mlynarczyk Lincy Mulder Legal Status of Same-Sex Couples in the EU 4


Karlijn De Heijde Kinga Palińska Rogier Plokker Sabine Ribeiro Maia Muhammad Hammad Sarwar Chrysovalantou Stampouli Eva Verdonk Panagiotis Viopoulos Christina Zoumpouli LINGUISTIC EDITORS Matjaž Mejač Thibault Michel Merel Vermorken MARKETING Ismini Athanasopoulou

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Special thanks We would like to thank Ms Lina Papadopoulou, Associate Professor of Constitutional Law at the Aristotle University of Thessaloniki for her assistance and guidance from the beginning of the project. We would like to express our gratitude towards Mr Jeremy Bierbach, attorney family law at Franssen Advocaten for his valuable feedback on the written pieces.

 

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About the project The European Law Students’ Association (ELSA) was founded in Vienna, Austria, on May 4th, 1981. During the times of the Iron Curtain, five students coming from Austria, Hungary, Poland and West Germany saw the need to promote international cooperation and mutual understanding among law students on both West and East Europe. Today ELSA is the world's largest independent law students’ association with membership of 42,000 students and young lawyers and is represented at nearly 360 law faculties in 43 countries across Europe. The Association has recently celebrated its 35th anniversary. Vision: A just world in which there is respect for human dignity and cultural diversity. Purpose: To contribute to legal education, to foster mutual understanding and to promote social responsibility of law students and young lawyers. ELSA’s unique network creates possibilities for international collaborations. One opportunity for collaboration can be found in Legal Research Groups. A legal research group (LRG) is a project within the framework of which undergraduate and postgraduate law students research a legal topic and write a joint report about it. Starting from the idea of the creation of International Working Groups on different fields of law back in 1994, the first LRG was carried out by ELSA International in 1997 with the topic of “International Criminal Law”. Since then ELSA International has launched LRGs on different topics while the project has started to become more and more popular among its national groups since 2013. Throughout these years ELSA International has collaborated multiple times with the Council of Europe and in 2016 it initiated collaboration with the International Labour Organization. In autumn 2014 ELSA Thessaloniki, ELSA Amsterdam and ELSA Luxembourg decided to launch a legal research group on one of the most dynamic topics: the legal status of same-sex couples in the 28 member states of the European Union. It was the first time in ELSA history that a trilateral cooperation was established at that level. At the moment the project was initiated, no legislation on the topic existed in Greece, while there were already extended relevant legal provisions in the Netherlands and Luxembourg. The previous year, though, was a milestone for Greece, as the newly elected government introduced for the first time a legal framework, regarding the same-sex couples’ cohabitation, which was approved with a great majority by the parliament. The aim of the report was to make a comprehensive overview of the legal status of same-sex couples in the European Union. The project thus covers not only our home states, but also the other member states of the European Union, information on European Union policies and case law of the European Court on Human Rights. The report has been made possible by the work of more than twenty researchers with different backgrounds. While being part of the team, they  

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improved their skills in researching and writing about a topic that they were interested in. The project was finalised in April 2016. It is important to note that only relevant information up till this date has been considered. From April 8th to April 10th, the researchers, along with other students that were interested in, were able to participate in a conference that was held on the topic. The conference took place in Thessaloniki, Greece. Apart from lectures on the topic, the researchers were encouraged to present their own research in order to practice their presentation skills. ELSA Thessaloniki, ELSA Amsterdam and ELSA Luxembourg wish you a pleasant reading.

 

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TABLE OF CONTENT 1.

Introduction on  European  Directives  ...........................................................................................  11  

1.1

Introduction .............................................................................................................................  13  

1.2

Directive 2004/38/EC  (“Free  Movement”  Directive)  ...............................................................  13  

1.3

Directive 2003/86/EC  (“Family  Reunification”  Directive)  ........................................................  16  

1.4

Directive 2004/83/EC  as  recasted  by  Directive  2011/95/EU  (“Qualification”  Directive)  .........  18  

1.5 Directive  2013/32/EU  (the  recast  “Asylum  Procedure  Directive”)  and  Directive  2013/33/EU   (the  recast  “Reception  Conditions  Directive”)  .....................................................................................  22   1.6   2.  

 

Conclusion ...............................................................................................................................  23   Status  of  the  same-­‐sex  couples  in  the  European  Union  Member  States  ....................................  25  

2.1

Austria ......................................................................................................................................  27  

2.2

Belgium ....................................................................................................................................  35  

2.3

Bulgaria –  Croatia  –  Slovenia  ...................................................................................................  41  

2.4

Cyprus ......................................................................................................................................  51  

2.5

Czech Republic  .........................................................................................................................  61  

2.6

Denmark ..................................................................................................................................  67  

2.7

Estonia .....................................................................................................................................  77  

2.8

Finland .....................................................................................................................................  87  

2.9

France ......................................................................................................................................  95  

2.10

Germany ................................................................................................................................  103  

2.11

Greece ....................................................................................................................................  111  

2.12

Hungary .................................................................................................................................  123  

2.13

Ireland ....................................................................................................................................  137  

2.14

Italy ........................................................................................................................................  143  

2.15

Latvia .....................................................................................................................................  157  

2.16

Lithuania ................................................................................................................................  169  

2.17

Luxembourg ...........................................................................................................................  181  

2.18

Malta ......................................................................................................................................  189  

2.19

Poland ....................................................................................................................................  195  

2.20

Portugal .................................................................................................................................  201  

2.21

Romania .................................................................................................................................  209  

2.22

Slovakia ..................................................................................................................................  215  

2.23

Spain ......................................................................................................................................  223  

2.24

Sweden ..................................................................................................................................  233   Multilateral Legal Research Group

 

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2.25

The Netherlands  ....................................................................................................................  245  

2.26

United Kingdom  .....................................................................................................................  257  

3.

Overview of  international  case  law  ...........................................................................................  267  

3.1

Introduction ...........................................................................................................................  269  

3.2

Right to  civil  marriage  and/or  registered  partnership  for  same-­‐sex  couples  ........................  269  

3.3

Rights of  transsexuals  ............................................................................................................  275  

3.4

Discrimination based  on  sexual  orientation  ..........................................................................  279  

4.

Conclusion .................................................................................................................................  287  

 

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1. Introduction on European Directives

 

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Written by Sotirios Kanarakis1

1.1

Introduction

One of the most crucial issues for the European Union as a unity of nations, is still the establishment of a uniform region of peace, stability, development and prosperity for all its citizens, regardless of their origin, nationality, color, religion or any other special characteristic of them. This paper intends to thoroughly examine and analyze the legal context, meaning the European Union (hereinafter EU) law, under which these core values of the EU are implemented, specifically towards LGBTI people and their personal and social life. Thus, the follow pages will focus on and present in detail those legal provisions, which provide the ground for the legal status of same-sex couples, their rights to free movement, family reunification, and asylum qualification, based merely on the current EU legal regime.

1.2

Directive 2004/38/EC (“Free Movement” Directive)

The ability of EU citizens to move freely across borders and reside in other Member States, under certain conditions, constitutes one of the key factors and purposes of EU integration. Individuals make use of this opportunity to study or work in another country at an increasing rate. The abovementioned rights and freedoms have also been extended to third-country nationals with the result of several different and complex legal issues, when they are applied on same-sex couples on the occasion in which one or both of them is originated from a third country. It is hence a challenging issue, those very rights of free movement, residing and establishment to other Member States of the EU to be granted and secured for same-sex couples and LGBT people in general.2

1.2.1 Background of the Directive The “Free Movement” Directive3 as it has and being implemented nowadays is a product of a two year negotiation among the European Commission and the Council in order for EU to adopt a single Directive on the free movement rights of all its citizens.4 Originally, the EU law had limited the right to free movement to those moving for the purposes of work or selfemployment. In the early 1990s, free movement rights were extended to other categories of 1 Sotirios Kanarakis is a trainee Lawyer and a postgraduate student (LL.M. in International Studies) at the Aristotle University of Thessaloniki. 2 Case C-267/06, Maruko, [2008] ECR I-1757, para. 59. 3 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77. 4 Commission, ‘Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States’, COM (2001) 257 final [2001] OJ C270 E/151.

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people such as students, retired persons and economically self-sufficient persons. It was not until 2001 that the European Court of Justice had emphasized that free movement is a fundamental right of EU citizens, regardless of the reason why an individual decides to live in another Member State.5 One of the most ambiguous issues of the Directive was that of the definition of the notion of the term “family”, especially because it was unclear whether a “spouse” had only had to be of the opposite-sex, married one or could also be of the same-sex and an unmarried one.6 This is highly problematic due to the fact that through the different meaning attributed to the “spouse” by national legislation, the effective and harmonized application of EU Treaties and secondary law would be undermined.7 Hence it was the positions of the scholars that on the one hand if the Court refuses to consider as “spouses” a same-sex couple pursuant to EU free movement law, then it is “showing little respect for the national family law of that Member State”.8 On the other hand that differentiated approach towards the term “spouses” would probably create two statuses, namely marriages that would be valid both throughout EU and Member States and marriages that would be only valid pursuant to national legislation.9

1.2.2 Main Provisions Under Article 6 of the EU Treaty, in order for the Member States to respect and comply with the fundamental rights of all citizens, “Free Movement” Directive should be implemented in a way that ensures that ‘spouses’ or ‘partners’ of citizens of the Union, exercising their free movement rights, are recognized as such, even when they are same-sex spouses or partners.10 Due to different national approaches though and for the sake of compromise, the rights of same-sex couples, according to EU law vary and depend on how they are divided into certain categories. EU law treats EU citizens moving to another Member State in a different way than third-country nationals and those seeking international protection. Directive 2004/38/EC legislates on a number of issues. When a same-sex married partner of a citizen of the Union would like to join his/her partner in another EU Member State, he/she would face an ununiformed and uncertain legal situation. The reason is that there are some Member States that, as far as a same-sex married partner of a citizen of the Union is concerned who intends to join him/her in another Member State, the marriage of whom would be held in a Member State that allows such marriages pursuant to its 5 Article 4 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L158/77; Case C-33/07, Jipa, [2008] ECR I-5157, para. 18; Case C-430/10, Gaydarov, [2011] ECR I-11637, para. 25. 6 K. Lenaerts, ‘Federalism and the Rule of Law: Perspectives from the European Court of Justice’ (2011) 33 Fordham Int LJ 1338, at p. 1355; C. Denys, ‘Homosexuality: a non-issue in Community law?”, (1999) 24 ELRev. 419, p. 420; EGC in T-58/08 P, Roodhuijzen, [2009] ECR II-3797. 7 K. Armstrong, ‘Tales of the Community: sexual orientation discrimination and EC law’, (1998) 20 JSWFL 455, at p. 463. 8 K. Waaldijk, ‘Free Movement of Same-Sex Partners’, (1996) 3 MJ 271, at p. 280. 9 M. Bell, ‘Holding back the tide? Cross-border recognition of same-sex partnerships within the European Union’, (2004) 12 ERPL, p. 621. 10 C. Costello, ‘Metock: free movement and “normal family life” in the Union’, (2009) 46 CMLRev. 587, pp. 615616.

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national law, they would reject the recognition of same-sex marriage concluded abroad. It is also possible that some Member States would refuse to consider as a ‘spouse’, the same-sex married partner of a citizen of the Union. Furthermore, when a same-sex registered partner of a citizen of the Union would like to join him/her in another EU Member State, he/she would again face a differentiated legal situation. There are certain countries which recognize registered partnerships concluded abroad as a legal basis to free movement and family reunification rights and thus supplying ground for a legal residence permit. On the contrary, there is also a significant number of countries in which samesex couples would possibly not be granted with free movement rights, due to the fact that Member States have either no such institution in their domestic law, or because the form of partnership they provide for their citizens is not equivalent to marriage,11 as the Directive requires, explicitly declining the application of the mutual recognition principle. Consequently, under the light of the current regime, registered partners “while moving in the EU, will find themselves in the strange situation of passing between states of recognition and states where they are rendered unmarried”.12 The third category of same-sex partnerships, namely the same-sex de facto partnership, require, according to the provisions of the Directive, proof of the existence either of a common household or of a durable relationship, duly attested. Thus, when a same-sex de facto partner of a citizen of the Union would like to join him/her in another EU Member State, he/she should provide to the host Member State’s relevant authorities sufficient proof that would persuade the national authorities to conclude and attest the durability of the relationship.13 It is therefore concluded that there is room for discretion on what Member States would judge sufficient and a rather high possibility for discriminatory national rulings towards same-sex partners, who may be living together for all their life. Consequently, it is certain that, any refusal to recognize same sex marriage validly concluded abroad for the purposes of freedom of movement, constitutes direct discrimination on grounds of sexual orientation, in violation of Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and of the general principle of equality, as reiterated in Article 21 of the Charter of Fundamental Rights.14 Despite the fact that the Court of Justice of the European Union adopted a rather restrictive approach towards the recognition of direct or indirect discrimination on the basis of sex or 11 M. Bell and M. Bonini Baraldi, ‘Lesbian, gay, bisexual and transgender families and the Free Movement Directive: Implementation Guidelines’ (2008) ILGA Europe, p. 15. 12 M. Bell, ‘Holding back the tide? Cross-border recognition of same-sex partnerships within the European Union’, (2004) 12 ERPL, p. 624. 13 J. Rijpma and N. Koffeman, ‘Free Movement Rights for Same Sex Couples Under EU Law: What Role to Play for the CJEU?’ in D. Gallo, L. Paladini, and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014), p. 475. 14 M. Bell, ‘Holding back the tide? Cross-border recognition of same-sex partnerships within the European Union’, (2004) 12 ERPL, p. 625; A. Weiss, ‘Federalism and the Gay Family: Free Movement of Same-Sex Couples in the United States and the European Union’, (2007-2008) 41 Colum. J. L. & Soc. Probs. 81, p. 105; ILGA Europe, ‘Equality Mainstreaming’ (2007) available at http://www.ilgaeurope.org/content/download/9365/55889/version/2/file/fact_sheet_sept-07.pdf.

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sexual orientation with its decision in Maruko15 and Römer16 accordingly- in which the CJEU left to the national court the opportunity to determine whether a life partnership was equivalent to marriage-it adopted a more LGBTI friendly approach with its decision in Hay.17 It was on the rulings of this very case that “if the opposite-sex married couples are in a comparable situation with same-sex registered partners for a certain purpose, this means that the latter cannot be treated worse than the former, simply because they have a different legal status, if under national law marriage is only available to opposite-sex couples”. In the same vain were also the judgements of the Court in Asociaţia Accept18 and the X, Y and Z judgment19 concerning LGBTI individuals, providing us with some hints as for the progress that the Court has shown as far as discrimination with regards to sexual orientation is concerned. Finally, it is of high importance to mention the legal status of transgender people, under the “Free Movement” Directive. According to Goodwin v UK case20 of the European Court of Human Rights, there should not be legal constraints on the Member States when it comes to transgender people marrying a person of the opposite-sex. Another conclusion derived from the judgement would also be that there are no grounds for other EU Member States to refuse to recognize such marriages, unless the marriage is about to be concluded either with a transgender person of gay or lesbian orientation or the reassigned gender identity is not yet recognized by the Member State itself.

1.3

Directive 2003/86/EC (“Family Reunification” Directive)

1.3.1 Background to the Directive Directive 2003/86/EC21 on the right to family reunification, being one of the first legal instruments on immigration policy, was part of the Tampere Program that aimed to an EU policy concerning authorized immigration and the rights of third-country nationals. According to the Directive, the applicability of which does not extend to the United Kingdom, Ireland and Denmark, third-country nationals who reside legally in the Member States for at least one year and have “reasonable prospects for permanent residence”, namely the “sponsors”, have the right to reunite with their non-EU national spouse, minors and unmarried children. Furthermore, children of both the sponsor and the spouse are eligible for family reunification, while also granted with vital social rights, such as access to the national labor market and the education system. Another significant point of the Directive is that Member States do have the discretion Case C-267/06, Maruko, [2008] ECR I-1757. Case C-147/08, Römer, [2011] ECR I-3591. 17 Case C-267/12, Hay, [2013] ECLI:EU:C:2013:823. 18 Case C-81/12, Asociaţia Accept, [2013], ECLI:EU:C:2013:275. 19 Joined Cases C-199/12 to C-201/12, Minister voor Immigratie en Asiel v. X and Y and Z v. Minister voor Immigratie en Asiel, [2013], ECLI:EU:C:2013:720. 20 Application No 28957/95, 11 July 2002. 21 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (‘The Family Reunification Directive’). 15

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to grant family reunification rights to the opposite-sex, unmarried partner of the sponsor.22 At that point though, some serious legal issues arise concerning the definition of a “spouse” and whether or not a same-sex spouse is considered as such, under the light of the Directive.23

1.3.2 Main Provisions It is rather clear that according to Article 4 (1 a) of the “Family Reunification” Directive, a spouse will benefit from the right to family reunification. Thus, on the one hand, the same-sex spouse of the sponsor, having already concluded a legally valid marriage under a Member State’s national law, should be benefited from the provisions of the Directive and be granted the family reunification rights on an equal basis with the opposite-sex spouse. On the other hand, it is also clear that if a Member State selects to further grant the right to family reunification to oppositesex, either unmarried partners living in a “stable long-term relationship”, or to registered partners, it should extend its protection equally, both to same-sex unmarried partners and to same-sex registered partners.24 Furthermore, despite the fact that a different approach by EU Member States would constitute a direct discrimination on the basis of sexual orientation, the legal situation remains differentiated among the Member States.25 Hence, some Member States have decided to extend the right to family reunification to unmarried partners, other to preclude the possibility as far as the registered partnerships are concerned, while some other Member States provide the right to family reunification on the basis of a durable relationship existing, even when it is not duly attested. Finally, there are also some Member States that have chosen not to provide for the extension of family reunification rights to unmarried partners. Consequently, as the UNHRC has recommended with regards to the purpose of family reunion, a broad interpretation of the term “family” should be adopted which would include same-sex partnerships as unions for purpose of family reunion. In the same vein, the definition of the term “family” should be also be broadened in the Directive on the Right to family reunification.26

That wide discretion provided to Member States was criticized even by the Commission: Report from the Commission to the European Parliament and the Council on the Application of Directive 2003/86/EC on the Right to Family Reunification COM(2008) 610 final. A “Green Paper on the right to family reunification of thirdcountry nationals living in the European Union (Directive 2003/86/EC)” [COM(2011) 735 final], was issued by the Commission in 2011 in order to address those shortcomings and especially Article 4 (3) of the Directive. 23 K. Lenaerts, supra note 5; C. Denys, supra note 5. 24 Tamara Jonji and Georgia Mavrodi, “Immigration in the EU: policies and politicis in times of crisis 2007-2012, 2012, Florence, European Union Democracy Observatory Robert Schuman Centre for Advanced Studies, pp. 27-29. 25 European Union Agency for Fundamental Rights, ‘Homophobia and Discrimination on the Grounds of Sexual Orientation and Gender Identity in the European Union Member States: Part I—Legal Analysis’, Section 4, 2008, p. 99; ILGA-Europe’s contribution to the Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC). 26 Human mobility and the right to family reunion, Report by Mrs Rosmarie Zapfl-Helblling Doc.10123, 1 April 2004, p. 27 and Article12.iii.a. Draft Recommendation on Human mobility and the right to family reunion. 22

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1.4

Directive 2004/83/EC as recasted by Directive 2011/95/EU (“Qualification” Directive)

1.4.1 Background of the Directive The goal of achieving a Common European Asylum System was always and still is one of EU’s top priorities due to fact that a large number of people, including the community of LGBTI people all over the world are either facing or risk facing persecution due to their sexual orientation and gender identity. Thus, in 2004 the EU, under the demand to foster its Common European Asylum System, adopted Directive 2004/83/EC,27 setting out minimum standards and procedures through which refugee status would be awarded to people in need of it. Moreover, the Directive also applies to third country nationals who apply for asylum in an EU Member State and it provides a wide range of international protection, from awarding the status of refugee, according to the 1951 Convention for the Status of Refugees, to subsidiary protection of its beneficiaries. Furthermore, while the decisive law-making institutions of the EU sought to foster the already set minimum standards, they adopted the recast Directive 2011/95/EU (“Qualification” Directive),28 in order to achieve both the harmonization and alignment of national laws and the jurisprudence of the CJEU and ECHR. Despite the fact that states such as the United Kingdom and Ireland are only bound by the former Directive 2004/83/EC, while also Denmark has no obligations at all, the recast Directive 2011/95/EU, included references to specific acts of persecution based on gender and thus strengthened its range of protection. Moreover, it is essential to reiterate that the recast Directive provides Member States the chance to apply more favorable policies, under the precondition of the compatibility with its provisions.29 The recast “Qualification” Directive must be interpreted in light of the obligations of EU’s Member States under both international and EU law. In that vein, the Treaty for the Function of the EU (TFEU) explicitly obliges European Union to ensure that a Common European Asylum policy is developed ‘in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’. Hence, EU Member States should always bear in mind that the recast “Qualification” Directive is also interpreted under the light of international legal instruments such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women,

See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:en:HTML . Directive 2011/95/EU of the European Parliament and of the Council, of 13 December 2011 on standards for the qualification of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), [2011], OJ L 337/9 [Recast Qualification Directive], see http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:337:0009:0026:en:PDF . 29 Art. 3, Directive 2011/95/EU 27 28

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the Convention on the Rights of Persons with Disabilities, the Convention against Torture, the Convention on the Rights of the Child (CRC) and the ECHR.

1.4.2 Main Provisions The recast “Qualification” Directive provides the requirements under which an individual should be awarded the status of refugee. The main legal instrument, which constitutes the legal basis for examining the personal status and qualification of each individual, is the 1951 Geneva Convention for the Status of Refugees. Specifically, Article 2 (d) of the Convention, states that: refugee ‘means.... a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country […]’. Additionally, apart from the international protection that the status of refugee provides in terms of access into the social system of the host Member State, article 2 (f) of the recast Directive also grants subsidiary protection. For such a status to be awarded to a third country national, it must be impossible for the status of a refugee to be granted and there should also exist ‘supporting grounds for a real risk of suffering serious harm’, if a third country national was to be returned to the country of origin. Moving on with our legal argumentation, LGBTI people are indeed frequently being seriously exposed and vulnerable to the fear of persecution or risk of suffering, a fact enabling them to be entitled to the protection of EU law, as mentioned above. It is hence absolutely crucial with regards to the analysis of the form of protection that these people are entitled to, to examine the preconditions for the qualification of those people both for the refugee status and for the subsidiary protection. There are two main requirements for a person to be granted the refugee status: a) persecution and b) the fact that this persecution or the absence of protection against such persecution from the country of origin is related to a reason covered by the Directive.30 Concerning the notion of persecution concerning LGBTI asylum seekers, certain restraints arise, mainly due to the fact that it is extremely difficult for those people to authenticate that sexual orientation or gender identity discrimination in their country of origin is indeed caused by the persecution. It is regrettably quite common that Member States incorporate discriminatory legislation, most notably laws which criminalize even consensual sexual relations between persons of the same sex, thus constituting a direct source of persecution.31 Hence, on the one Evangelia (Lilian) Tsourdi, “Guidelines on the transposition of the Asylum Qualification Directive: protecting LGBTI asylum seekers”, 2014, ILGA EUROPE, pp. 7-10. 31 The following countries have legislation which criminalizes same sex consenting intercourse: Afghanistan, Algeria, Angola, Bahrain, Bangladesh, Barbados, Benin, Bhutan, Botswana, Brunei, Burma, Burundi, Cameroon, Cape Verde, Cook Islands, Democratic Republic of Congo, Djibouti, Eritrea, Ethiopia, Fiji Islands, Gambia, Ghana, Grenada, Guyana, Guinea, India, Iran, Jamaica, Kenya, Kiribati, Kosovar Autonomous Republic, Kuwait, Laos, Lebanon, Liberia, Libya, Malawi, Malaysia, Maldives, Marshall Islands, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Nauru, Nepal, Nicaragua, Nigeria, Niue, Oman, Pakistan, Papua New Guinea, Qatar, Russia: Chechnya, Saint Lucia, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Singapore, Solomon Islands, Somalia, Sri Lanka, Sudan, Swaziland, Syria, Tajikistan, Tanzania, Togo, Tokelau, Tonga, Trinidad and Tobago, Tunisia, Turkmenistan, Tuvalu, Uganda, United 30

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hand, the recast “Qualification” Directive requires acts of persecution to be ‘a severe violation of basic human rights’, directly reflecting the fundamental human rights as those are protected under the European Convention on Human Rights. On the other hand, Article 9 (1) (b) of the Directive, also provides that persecution may derive from an ‘accumulation of various measures including violations of human rights which are sufficiently severe as to affect an individual in a similar manner’, while also Article 9 (2) states that “…(d) acts of gender-specific or child-specific nature”. Consequently it is really important that “persecution” could be justified in grounds of sexual orientation and gender identity and thus LGBTI asylum seekers to be granted with international protection. Furthermore, concerning the fact that persecution needs to be related to a certain reason covered by the Directive, we must reiterate the fact that according to Article 10 (1) (d) of the recast Directive: ‘Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States. Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group […]”. It is clear that despite the fact that sexual orientation and gender identity are not explicitly mentioned in the 1951 Geneva Convention, as they should be, as grounds for persecution, Directive 2011/95/EU establishes a ground of persecution because of “membership of a particular social group”.32 Clarifying the abovementioned notions, Article 10 (1) (d) of the Directive sets two conditions: a) that members of a group that ‘share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce them’, and that b) the group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.33 According to the UNHRC the legal interpretation, that must be followed under the light of the Directive concerning the abovementioned terms, concludes that the two notions of ‘protected characteristics’ and ‘social perception’ must be treated as alternative and not cumulative in order for the conditions of the refugee status to be met.34 Concluding the argumentation concerning the “Qualification” Directive, it must be underlined that LGBTI people, when applying for asylum under the

Arab Emirates, Uzbekistan, Western Sahara, Western Samoa, Yemen, Zambia, Zimbabwe. See “Where Having Sex is a Crime: Criminalization and Decriminalization of Homosexual Acts (2003)”, International Gay and Lesbian Human Rights Commission available at http://www.iglhrc.org ; ILGA, State-sponsored homophobia: A world survey of laws criminalizing same-sex sexual acts between consenting adults, May 2012. Available at: http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2012.pdf . 32 Spijkerboer T., Jansen S., Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, 2011, available at: http://www.rechten.vu.nl/nl/onderzoek/conferenties-enprojecten/onderzoeksproject-fleeing homophobia/index.asp . 33 Given the case-law of the ECJ in C-13/94 P v. S, Judgment of the Court of 30 April 1996, it follows that gender identity is included in the definition of gender. “ [...] the scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one sex or the other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the Directive is also to apply to discrimination arising, as it is the case, from the gender reassignment of the person concerned.” (para. 20). 34 UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October 2012, HCR/GIP/12/01, at para. 44.

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provisions of the abovementioned Directive, often face structural restraints based on unjustified demands from Member States concerning evidences of sexual orientation and gender identity. It is quite common that LGBTI asylum seekers often come from a country where displaying non-traditional sexual orientation or gender identity is extremely dangerous.35 Hence, the same people are trying to conceal their sexual orientation due to fear of persecution.36 Consequently, a large number of LGBTI asylum seekers frequently fail to provide sufficient evidences and therefore they are denied the refugee status, leaving open only the option of the subsidiary protection. It is evident that the recast “Qualification” Directive provides EU Member States with certain legal instruments so that they can cope efficiently with the frequent issue of lack of sufficient evidence aiming at the best interest of asylum seekers.37 Hence, each Member States should accept and facilitate the procedure provided based on a credible and coherent assessment of the personal statement made by the asylum seekers while also taken into consideration in an individualized and sensitive way. Notwithstanding the necessary procedure of the individually assessed personal statement, it is rather certain that medical testing of the asylum seeker’s sexual orientation is an infringement of basic human rights and therefore not allowed.38 Apart from the protection that the refugee status bestows to LGBTI asylum seekers, it is regrettably frequent for them to be denied that protective vail, due to several reasons. Hence, Directive 2011/95/EU has already included certain provisions relating to the status of subsidiary protection provided on the grounds of a real risk of “serious harm” if those people were to return to their countries of origin. According to Article 15 (a) and (b) of the Directive, “serious harm” is described as: ‘a) death penalty or execution, b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. It is clear that the legal reasoning behind the use of the status of the subsidiary protection is that in some countries from which the asylum seekers are genuinely originating from, differentiated sexual orientation remains punishable by death penalty, while torture is also used as a means of punishment for an individual’s sexual orientation and gender identity. Moreover, according to Directive 2011/95/EU, family members of the beneficiaries, under the light of the Directive, also fall

The exact danger lies in the fact that the source of discrimination is the society and the family of a LGBTI person. As an example: Jian v. Secretary of State for the Home Department [2000] Imm. Ar. 76; R (on the application of Ragman) v. Special Adjudicator [2000] All ER 1634. ; Amnesty International “Crimes of hate, conspiracy of silencetorture and ill-treatment based on sexual identity” (London: Amnesty International, 2001), p. 39 ; LEIGH, V. et al authors, Study for the EP: Towards an EU roadmap for equality on grounds of sexual orientation and gender identity, 2012, at p. 52. Available at: http://www.europarl.europa.eu/committees/en/libe/studiesdownload.html?languageDocument=E &fi le=78131. 36 Report of the Committee on Migration, Refugees and Demography (Council of Europe), Situation of gays and lesbians and their partners in respect of asylum and immigration in the Member States of the Council of Europe, Doc. 8654, 25 February 2000, par. 37. 37 Art. 4(5) and Arts. 5(1), 5(2), Directive 2011/95/EU. 38 UNHCR’s Comments on the Practice of Phallometry in the Czech Republic to Determine the Credibility of Asylum Claims based on Persecution due to Sexual Orientation, April 2011, available at: http://www.unhcr.org/refworld/docid/4daeb07b2.html . 35

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under the protection of the EU law concerning international protection.39 According to Article 2 (j) of the Directive, which provides us with the notion of term “family” for the purposes of the Article, it should have a) already existed in the country of origin of the asylum seeker and b) the family members are currently present in the host Member State. Additionally, as “family members” are considered: “a) the spouse of the beneficiary of international protection or his or her unmarried partner in a stable relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country nationals, b) the minor children of the couples referred to in the first indent or of the beneficiary of international protection, on condition that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law, c) the father, mother or another adult responsible for the beneficiary of international protection whether by law or by the practice of the Member State concerned, when that beneficiary is a minor and unmarried”. Thus, we can stress the fact that, as far as same-sex couples are concerned, for the abovementioned, clause (a) to be fulfilled, Member States must incorporate their national legislation in order both to allow registered partnership for same-sex couples, and treat equally same-sex married persons and registered partners. Regrettably though, it is clear that there are certain Member States that recognize neither same-sex couples under their national legislation nor registered partnership for same-sex couples, constituting international protection for their family members an impossible goal. Furthermore, the jurisprudence of the European Court of Human Rights (ECtHR) could be used to attest the abovementioned findings. In the Kozak case40 the Court ruled that the “de facto marital cohabitation” must also include individuals in a same-sex relationship and that the rights granted to cohabitating couples of different sex must be equal to those of the same-sex. Moreover, the Court, in the case of Schalk & Kopf41, ruled that “a cohabiting same-sex couple living in a stable partnership fells within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would fall”, relating same-sex couples and their recognition as “family” pursuant to Article 8 of the European Convention of Human Rights for the right to private and family life.

1.5

Directive 2013/32/EU42 (the recast “Asylum Procedure Directive”) and Directive 2013/33/EU43 (the recast “Reception Conditions Directive”)

1.5.1 Background to the Directive The adoption of the two abovementioned Directives concerning the asylum procedures and the reception conditions, have concluded and produced a cohesive and solid protective net which, Art. 23(2) of Directive 2011/95/EU. Kozak v. Poland (Application no. 13102/02) Judgement of 2 March 2010. 41 Schalk and Kopf v. Austria (Application no. 30141/04) Judgement 24 June 2010. 42 As it has amended Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. 43 As it has amended Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. 39 40

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together with the “Qualification” Directive, constitutes the Common European Asylum System. The main goal of that trilateral legal layout is to clearly define and enhance the protection that LGBTI people enjoying in a way that would impel EU Member States, in a harmonized way, to acknowledge their obligations to protect fundamental human rights.44

1.5.2 Main Provisions A brief presentation of the main provisions of the “Asylum Procedure” Directive45 is essential in order for the paper to be scientifically efficient as far as the legal situation of the same-sex couples is concerned. The Directive is divided into six chapters and the first chapter contains general provisions, definitions, and the scope of its application, while the second chapter refers to core values of a proper asylum procedure, including the basic rights of an asylum seeker during the period of time in which his/hers asylum application is under examination from the competent national authorities. Moreover, the third chapter of the Directive sets out the regulations on “standard” procedures at first instance cases, namely in cases that the asylum examination procedure is held close to the borders of a Member State or the layout under which an asylum application may be deemed inadmissible by the competent national authorities. The fourth chapter sets out the rules of procedures for a possible withdrawal of international protection, either the one of the refugee status or the one of the subsidiary protection. Finally the fifth chapter provides with rules and procedures on appeals in cases of rejected applications and the final chapter includes details of technical nature concerning the implementation of the Directive. The “Reception Directive”46 is divided accordingly in seven chapters, with the first containing the purpose, definitions and scope of the Directive. Continuing, the second chapter refers to general provisions on reception conditions, namely social rights and access to basic goods and services of asylum seekers, while the third chapter refers to the procedures followed in terms of an alteration of the reception conditions. Furthermore, the fourth chapter deals with the authentication procedures and the special treatment of vulnerable asylum seekers required,47 while the fifth chapter contains the rules on appeals of decisions related to issues concerning the asylum application. The sixth chapter focuses on ways for improving the efficiency of the reception system and the final chapter contains final provisions mainly of technical nature.

Council of the European Union, The Stockholm Programme – An open and secure Europe serving and protecting the citizens, Doc. 17024/09, Brussels, 2nd December 2009, at p.69. Available at: http://www.se2009.eu/polopoly_fs/1.26419!menu/standard/file/Klar_Stockholmsprogram.pdf . 45 See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0032&from=EN . 46 See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0033&from=EN . 47 ILGA-Europe, Good practices related to LGBTI asylum applicants in Europe, by Sabine Jansen, May 2014. Available at: http://www.ilga-europe.org/home/publications/reports_and_other_materials ; UNHCR, Guidelines on International Protection No. 9, para 59. 44

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1.6 Conclusion The purpose of this chapter was to duly prove that the legal status of same-sex couples varies not only among EU Member States but frequently also among the various legal instruments of the EU, in which we attest certain inconsistencies. We have also concluded to the fact that despite the differentiated national legislation and the inconsistencies regarding the implementation of EU law, same-sex couples are recognized by some Member States and there is expressed will, at least from the side of the EU institutions, to enhance the relevant legal instruments as to foster the LGBTI community’s fundamental rights and to aim at the lessening of the practical constraints concerning matters of their daily life. To my personal point of view, it is the cornerstone of our common european ethics, values and legal plane, the non-derogable, full recognition, respect and enhancement of same-sex couple’s fundamental rights, because otherwise sixty-three years of constant cultural and legal evolution would have passed in vain.

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2. Status of the same-sex couples in the European Union Member States *This chapter will deal with the status of same-sex couples in the 28 countries of the European Union, in alphabetical order.

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2.1

Austria Written by Victoria Christou48

2.1.1 General principles of jurisdiction Same-sex couples’ rights are argued as rights to privacy, rights to protection form violence, rights to equality as individuals and as family units, rights of minorities, or as part of a larger framework of the recognition of sexual diversity within the society.49 Recognizing rights of same sex couples has been considered different to recognizing their right to marriage and family, which is the next step. The central question in this research will be: what is the legal status of same-sex couples in Austria? In order to answer this question, some background information will be needed regarding the general principles underlying the constitution and the legislation of Austria. Austria, officially the Republic of Austria, is a democratic federal republic composed of nine autonomous federal states according to article 1 of the Austrian constitution. All federal states are headed by a governor who is elected by the federal state legislatures. After World War II, on 1 May 1945, the Austria’s constitution from 1920, drafted by Professor Hans Kelsen, was reenacted. It took, however ten more years until Austria’s sovereignty was re-established by the conclusion of a state treaty on 15 May 1955. Austria declared its independence and neutrality by constitutional law and became a member of the United Nations. On January 1995 Austria joined the European Union and became a member of the European Currency Union. The Austrian legal system is based on the civil law tradition and has its origins in Roman law. The Austrian constitution establishes a representative democracy with a two chamber parliamentary system. One of the basic principles of their parliamentary system is the Montesquieu principle, according to which powers are separated. According to article 24 of the constitution, the legislative power of the Federation is exercised by the National Council jointly with the Federal Council. The National Council is elected by the people in accordance with the principles of proportional representation on the basis of equal, direct, personal, free and secret suffrage by men and women who have completed their sixteenth birthday on the day of election. General federal elections take place normally every four years. On the other hand, the Federal Council represents the interests of the nine federal federal states and that is why the members of the Federal Council are nominated by the diets of those federal states.50

Victoria Christou is an undergraduate law student (LLB Law) at the University of Amsterdam   Sanders, Constructing Lesbian and Gay Rights, 9 Can. J.L. & Soc. 99 (1994), p.99 50 Oehlboeck & Gerstner, The Austrian Legal System and Laws: a Brief Overview, http://www.nyulawglobal.org/globalex/Austria.htm 48

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Interesting will be to see how a bill can become federal law in the Austrian system, as it will come back later on. First of all, it must be resolved by the National Council. Bills that pass are then sent to the Federal Council for approval, disapproval or commentary. If the Federal Council does not send a response within eight weeks or if they explicitly approve the bill, it passes. The Federal Council does not have the ability to veto a bill, as the National Council can simply force a bill into law by passing it again. This is not applicable to bills concerning changes in the Federal Council’s rank, treaties that have to do with the federal states’ sphere of action and federal principle laws. The formal head of state is the Bundespraesident. He is directly elected by Austrian people every six years and is limited to two consecutive terms of office. The Federal President appoints the Federal Chancellor and the other members of the Federal Government. This is a pure political power. The Federal President and the Federal Government are the highest administrative bodies in Austria. The country’s government is headed by the Federal Chancellor, in whom most political power is vested. The governments, both local and federal, exercise executive power. According to article 101, the executive power in each federal state is exercised by a federal state’s government, which is elected by the federal state’s parliament. The judicial power is independent and exercised by independent courts, which are federal in nature; there are no state courts. According to article 82 the federation is under the jurisdiction of the Court of Justice. The Federal Constitutional Act assigns the tasks of regular jurisdiction in civil and criminal matters, penal services and judicial administration exclusively to federal competence. There are also administrative courts for the area of administration both on a federal and a state level. Austria’s judicial system includes ordinary courts, the public prosecution offices, the prisons, the probationary facilities, the Federal Cartel Prosecutor and the Supervisory Authority for collecting societies. In the Austrian legal hierarchy, Fundamental Principles have the highest ranking. Those principles include the democratic principle, the principle of the separation of powers, the principle of the rule of law, the republican principle and the liberal principle. In other words, those are the leading principles of the basic constitutional legal system. Austria’s entry into the European Union on the first of January 1995, altered the hierarchy of legal sources. Austrian constitutional law was joined with the EU law as a fundamental source of law. This is how Austria has a dual constitution. The general view is that EU law takes precedence over Austrian laws and the Austrian constitution, but it is subordinate to the fundamental principles of the constitution mentioned above. Unlike most constitutions, the Austrian constitution does not have a chapter on human rights. They can be found in constitutional acts or have the form of individual provisions in statutes and treaties which are designated as constitutional (Verfassungbestimmung). The Basic Law on the General Rights of Nationals of the Kingdoms and Länder represented in the Council of the  

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Realm, a decree issued by Emperor Franz Josef on 21 December 1867 is the only law Austria has that resembles a bill of rights. Austria is further to that party to the European Convention of the Human Rights, which has been implemented as a directly applicable constitutional law in Austria. This means that decisions made by the European Court on the human Rights are relevant in Austria. Human, civil, and political rights can be found in different acts or treaties. The rights relevant to our topic will be thoroughly discussed later on. Important to mention is that not even one provision can be found in the constitution referring to equality of homosexuals. The only provision that might be interpreted as including rights of homosexuals is article 7, according to which: ‘All nationals are equal before the law. Privileges based upon birth, sex, estate, class or religion, are excluded. No one shall be discriminated against because of his disability…”.

2.1.2 Equal rights 2.1.2.1

Individual protection of human rights

Nowadays, human rights are generally respected and protected in Austria. The most important anti- discrimination provision in the constitution has been mentioned above. Article 7 of the Austrian constitution makes all nationals equal before the law. The law provides protection against discrimination based on race, gender, disability, language, sexual preferences social status etc. in various acts and treaties but the government cannot enforce all these provisions effectively, as we will see later on. Under the constitution, neither the Federation nor the federal states have the exclusive power to regulate “anti-discrimination” and that is the main reason that leads to the scattered legal framework with more than 30 provincial pieces of legislation and five main acts at the federal level protecting equal rights. The most important and relevant federal acts are the following: the “Gleichbehandlungsgesetz” (Equal Treatment Act) covering the private sector and protecting victims of discrimination based on gender, ethic affiliation, religion, belief, sexual orientation and age in employment and the “Bundes-Gleichbehandelungsgesetz (Federal- Equal Treatment Act) covering the public sector and protecting against discrimination on the same grounds. However, according to the Amnesty International Report of 2014/2015, the anti-discrimination law did not ensure protection against all forms of discrimination. Gaps remained in particular as to the protection against discrimination on basis of religion, belief, age and sexual orientation in the access to goods and services. The situation of the lesbian, gay, and transsexual community in Austria is ambivalent.51 On the one hand, the community has reached a high level of visibility and acceptance in public events Dieter Schindlauer, Executive Summary: Country Report Austria 2013 on measures to combat discrimination, European network of legal experts in the non-discrimination field

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like the pride parades and the Life Ball as well as in social media. On the other hand Austria remains a very conservative country, predominantly Catholic where homophobic statements by politicians, high-ranking church officials, but also civilians are still common. Take gay marriage for instance. A November 2013 poll by Market for Der Standard found that 33% still do not support same-sex marriage and that adoption by same-sex couples is opposed by 37%. As mentioned above, the enforcement of the anti-discrimination provisions still remains a problem in Austria. First of all, the problem in the enforcement is caused by the enormous lack of awareness in the overall population about the mere existence of legislation. Secondly, the scattered and complex legal framework is another reason. Moreover, the equality bodies created to deal with matters of equality cannot bundle their efforts and their resources are limited. Finally, another problem faced in Austria is the lack of case law regarding discrimination. Victims of discrimination cannot ensure the outcome of proceedings and that is the main reason why they usually to not wish to proceed.

2.1.2.2

Recognition of relationships/family protection

In Austria there are two forms of legally recognized relationships: marriage and registered partnership. This chapter will focus on opposite sex relationships. Same sex relationships will be discussed thoroughly in the following chapter. The legal age for marriage in Austria is 18 for both partners. Partners at least 16 years of age may also marry upon presentation of written, notarized consent from both parents and if the other spouse is at least 18 years old. Religious marriages are not legally recognized in Austria. Only civil marriages are legal. Religious ceremonies may be followed if desired. Civil marriages are performed by officials of the Registry Office (Standesamt) in the appropriate jurisdiction. The ceremony takes place at the Standesamt. If a party to the marriage is an Austrian citizen or resides in Austria the application for marriage must be files at the Standesamt in the locality of that residence. If both parties to the marriage are neither Austrians nor residents, the application must be filled at the Standesamt for the First District of Vienna. Nothing can be found in the Austrian constitution about family protection. A definition of “family” cannot be found either. Nevertheless, Austrian families are supported more generously than elsewhere in Europe. Family life is a political priority and Austria furthers it by offering financial and non-financial support.52 The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) governs legal relationships between spouses and relationships between parents and children. The Austrian Marriage Act (Ehegesetz) contains all the provisions concerning engagements, the requirements for marriage and divorce, annulment or nullity and obligations after divorce. Provisions on litigious proceedings in general, including those of family protection Austria: Generous support for families- European Platform for Investing in Children, http://europa.eu/epic/countries/austria/index_en.htm

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and relationships and the jurisdiction of Austrian courts can be found in the Code of Civil Procedures (Zivilprozessordnung) and the Act governing the jurisdiction of Austrian Courts.

2.1.2.3

Recognition of homosexual relationship

In December 2004 the Social Democratic Party of Austria presented an innovative programme, contrasting it to the programme of the conservative government. President Heinz Fischer was a progressive thinker for the terms of Austria and spoke out for the rights of same sex couples. However it was not until the case Karner v. Austria that same sex couples were given the same rights as opposite sex couples. In Karner v. Austria the applicant, who died before the judgement, shared a flat with his homosexual partner from 1989. They shared the outgoings of the flat. In 1991 his partner discovered that he was infected with AIDS. Mr Karner nursed him and in 1994 he died after designating Mr Karner as his heir. In 1995 the landlord brought proceedings against Mr Karner to terminate the tenancy. The District Court dismissed the action, considering that the statutory right of family members to succeed to a tenancy also applied to persons in a homosexual relationship. The Supreme Court found that the notion of life companion had to be interpreted as at the time the statute had been enacted, which means that the legislature’s intention in 1974 had not been to include persons of the same sex. The applicant complained under Article 14 and Article 8 of the European Convention on Human Rights that he had been the victim of discrimination on the ground of his sexual orientation. The Court reiterated that differences based on sexual orientation required particularly serious reasons by way of justification and this was not the case. In Schalk and Kopf v Austria the European Court of Human Rights concluded that the European Convention on human rights does not oblige Member States to legislate for or legally recognize same-sex marriages. The applicants were a same sex couple living in Vienna. On 10 September 2002 the applicants requested the Office for Matters of Personal Status (Standesamt) to proceed with the formalities to enable them to contract marriage. By a decision on 20 December 2002 the Vienna Municipal Office (Magistrat) refused the applicants’ request by referring to article 44 of the Allgemeines Bürgerliches Gesetzbuch. According to article 44 only persons of different sex can get married. The applicants lodged an appeal with the Vienna Regional Governor, but to no avail. In his decision on 11 April 2003, the governor confirmed the Municipal Office’s legal view. After that, in a constitutional complaint, the applicants alleged that the legal impossibility for them to marry constituted a violation of their right with respect to private and family life and on the principle of non-discrimination. On 12 December 2003 the Constitutional Court dismissed the applicants appeal by declaring that the fact that same sex relationships fall within the concept of private life and as such enjoy the protection of article 8 of the European Convention on Human Rights- which also prohibits discrimination on nonobjective grounds (Article 14 of the Convention) - does not give rise to an obligation to change Multilateral Legal Research Group 31


the law of marriage. Furthermore, they rejected to intervene in constitutional issues by saying that this is a task that belongs to the legislator. The applicants decided to fight for their rights and went to the European Court of Human Rights, claiming that Austria’s failure to legally recognize same-sex marriages constituted a violation of article 12 of the European Convention on Human Rights, according to which men and women have a right to marry and form a family, according to the national laws governing the exercise of this right. The Court noted that there was no violation of article 12 and no violation of article 14 in conjunction with article 8 of the Convention. The essential part of this judgment is that it was clarified that the European Convention on Human Rights does not oblige Member States to legislate for or legally recognize same sex marriages. After this judgment same - sex couple marriage and the recognition of their rights became a topic of discussion not only in the academic community. The conservative Austrians were gradually changing their minds. A European Union poll in 2006 showed that 49% of Austrians supported gay marriage.53 In 2009 the government coalition agreed to the recognition of the equality of same sex couples partnership and the Registered Partnership was enacted. As a result of this recognition registered partners of same sex got equal rights in labour, immigration, pension, tax and civil law as opposite sex couples in marriage. It has been argued that registered partnership is not the same as marriage and that this is a form of discrimination. In January 2013 the rights of registered partnerships were broadened, but the big step to recognize same – sex couples marriage has never been taken in Austria. The Green Alternatives, an opposition party, handed in a same – sex marriage bill to the National Council on 20 November 2013. However no progress has been noted. In 2015, a few days before Vienna Pride, the Austrian Parliament voted against a new bill calling for the extension of the ‘the human right of equal marriage’ to same sex couples. Out of the 136 representatives in the Assembly 26 voted in favour of the marriage equality bill and 110 representatives voted against it. Only the Green party that proposed it was fully supporting the bill. The Social Democratic Party of Austria, the SPÖ, who originally called for equality and progress voted against.54 As mentioned above, there is a difference between a registered partnership and marriage with regard to their effects. Registered partners keep their surnames. A common surname requires an additional procedural stage that is an application for a name change. The Act on Registered Partnership does not oblige the partners to mutual faithfulness. Medically assisted reproduction is expressly ruled and the same held for adoption till 2013. On 19 February 2013, the European Court of Human Rights ruled in X and Others v Austria that a same sex partner has the right to

"Eight EU Countries Back Same-Sex Marriage: Angus Reid Global Monitor", Angus-reid.com. Pisani Tommy, Austria Votes Against Same Sex Marriage, http://www.outtraveler.com/destinationguide/vienna/2015/06/23/austria-votes-against-same-sex-marriage

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adopt his or her partner’s biological child.55 Austrian law permitted the right of a same –sex partner to adopt the biological child of his or her partner, but under the condition of a stable opposite-sex relationship. In January 2015 the Constitutional Courts found this legislation unconstitutional and ordered a change in the existing laws in order to allow joint adoption by same sex couples. However, same sex couples cannot adopt jointly. To conclude, equal treatment is by far not reached yet. The Austrian Constitutional Court ruled that there is no violation of the equal treatment principle excluding same sex couples from marriage. However, recent rulings of the European Court for Human Rights have stated that that allowing privileges for the institution of marriage does not automatically mean that it is also acceptable to treat same-sex couples differently, at random, without objective justification. For this reason, it remains to be seen what reasons can be given for the differences between marriages and same-sex partnerships under the Act on Registered Partnerships and to what extent a need will arise to reform Austrian marriage law.

2.1.3 National policy In recent years, a lot of research has been done regarding the acceptance of homosexuals insociety. Research has also shown that especially in Germany and Austria gays and lesbians were persecuted and killed in concentration camps. When the gay movement started in Austria in the late 1970s, commonly referred to a ‘Homocaust’,they estimated that the number of individuals killed in concentration camps on the grounds of their homosexuality ran into the hundreds of thousands.56 Recent research has shown that they were highly exaggerated and there cannot be a comparison with the Holocaust at all. They found out that there were about 10,000 – 15,000 people killed in concentration camps due to their homosexuality. Of course, if we assume that five percent of the six million people killed in Nazi camps were also homosexual, you can make the claim that 300.000 gays and lesbians were killed in the camps, but then you have to say that not all of these 300.000 were imprisoned and killed because of their homosexuality. Luckily, societies have changed. The gay community developed and in a much more intense way in larger cities of Austria, such as Vienna, Linz, Innsbruck, Salzburg and Graz. In Vienna gay prides are held every year and as mentioned above a 2006 European Union poll surveying up to 30.000 people showed Austrian support for same sex marriage at 49 percent, which is higher that the EU average of 41 percent. Another poll, which took place in November 2013 by Market for Der Standard found that 61 percent support gay marriage and 33 percent oppose to gay marriage. Furthermore, the same survey showed that adoption by same- sex couples is supported by 56 percent and opposed by 22 percent. A poll by Market for ORF in May 2014 found that 73

X and Others v Aaustria, ECHR 19010/07 Kurt Krickler, Homosexuals in Austria: Nazi persecution and the long struggle for rehabilitation, Homosexual Initiative Vienna, p. 5

55 56

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percent support same- sex marriage, a percentage that is highly impressive. Progress can be noticed in public opinion. There are plenty of organisations supporting LGBT rights. Some of them are international, but have influence in Austria like the International Gay and Lesbian Human Rights Commission and the International Lesbian, Gay, Bisexual, Trans and Intersex Association. Important to mention is the International Human Rights Tribunal, which took place in Vienna in June 1995 and was dedicated to the persecution of lesbians, gays, bisexuals and transgender persons in Austria from 1945 to 1995. The effects of the tribunal can be characterized great with regards to changes in Austrian law. In 2004 they managed to include sexual orientation in the anti-discrimination law. In 2005 they recognized homosexuals as being victims of Nazis and in 2009 sex change documents were no longer dependent on completion of sex operations. Last but not least, domestic partnerships for lesbian and gay couples were recognized by the law thanks to the verdicts and requests of the Tribunal. The most important LGBT movement was characterized by the actions of the Austrian Lesbian and Gay Forum, in German called the Österreichisches Lesben- und Schwulenforum. It is an umbrella association representing important LGBT organisations in Austria. A recent, and not less important LGBT organization, is Rainbow Campaign. Its mission is to harmonize the LGBT community behind projects, causes and campaigns. Not only are NGOS dedicated to the protection of the LGBT rights. Vienna has an LGBT anti- discrimination office, in German called the Antidiskriminierungsstelle für gleichgeslechtliche und transgender Lebensweisen. To mark the fifteen years of its existence a speech was given by the director of the EU Agency for Fundamental Rights, Morten Kjaerum, who based his speech on the Eurobarometer Antidiscrimination Survey of 2012. Discrimination against LGBT persons has reduced. Six out of ten Austrians would be comfortable with having a gay, lesbian or bisexual person appointed to the highest elected political position. The social acceptance of the LGBT community has improved. Certain statutory enactments have been made to help and protect LGBT persons and their rights. The problem of discrimination still exists to some extent, maybe due to the influence of Catholicism in the country. Moreover, lots of politicians have Catholic traditions and values, which also influenced the time needed to pass laws ‘permitting’ homosexuality and abolish those forbidding it.

2.1.4 Conclusion Austria has a peculiar organization. It is a democratic federal republic composed of nine autonomous federal states (Art. 1 Constitution). This has led to some difficulties regarding the legislation. After years of lots of effort, legislation regarding the LGBT rights passed. According to Austrian law, same sex registered partnership is legal since 1 January 2010. Although proposals have been made to legalize marriage as well, they were rejected. On the 23rd of June Legal Status of Same-Sex Couples in the EU 34


2015, an article was published, about another effort to pass legislation allowing same sex marriage.57 The marriage equality bill was rejected. This surprising outcome came just weeks after Ireland and Greenland approved same-sex marriage and leaves us with one question: what is going to happen in the future

2.2 Belgium Written by Muhammad Hammad Sarwar58

2.2.1 General principles of jurisdiction The first constitution of Belgium was written in 1831. It was a balanced synthesis of the French constitutions of 1791, 1814 and 1830, the Dutch constitution of 1814, and of English constitutional law. However, it did not become an admixture. On the contrary, it became an original piece of work and is considered to be a model of ‘liberal constitutionalism’ by some.59 The most important elements are still in force. By the 1831 constitution, Belgium became a parliamentary monarchy. A central principal was the separation of the legislative, executive and judicial power. Its constitution established Belgium as a unitary state which was organized at three levels; the national level, provinces and municipalities. However due to state reforms, Belgium has evolved into a federal state.60 Since 1993, the first article of the Constitution stipulates that Belgium is a federal state composed of Communities and Regions. This means that there are two types of devolved entities at the same level, with neither taking precedence over the other. Belgium is divided into three communities: the Flemish Community, the French Community and the German-speaking Community,61 and also into three regions: the Flemish Region, the Walloon Region and the Brussels Region.62 The communities and regions are divided into municipalities, each municipality is either Dutch speaking, French speaking or German speaking.63 The borders of the language areas can be changed or corrected only by a law which is supported by specific majorities of each language group of each Chamber. With respect to human rights, Belgium has a notable history. Mainly due to its law of universal jurisdiction, which allows it to judge people accused of war crimes and crimes against humanity.64 The act was repealed in 2003 but still have still been several convictions on its basis. Title II of the Belgian constitution is titled ‘The Belgians and their rights’. Under this heading, a number of

57 Tommy Pisani, Austria votes against Same-Sex Marriage, www.outtraveler.com 58Muhammad Hammad Sarwar is a postgraduate student(LLM International and European

Law: Public International Law) at the University of Amsterdam 59 Patricia Popelier, Koen Lemmens. The Constitution of Belgium: A Contextual Analysis. First ed. Hart, 2015

Article 1 Constitution: ‘Belgium is a federal state composed of communities and regions’ Article 2 Constitution: ‘Belgium comprises three communities: the Flemish community, the French Community and the German-speaking Community’ 62 Article 3 Constitution 63 Article 4 Constitution 64 Belgium: Act of 1999 Concerning the Punishment of Grave Breaches of International Humanitarian Law, 10 February 1999, available at: http://www.refworld.org/docid/3ae6b5934.html [accessed 30 March 2016] 60 61

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rights are listed that apply to everyone on Belgian soil.65 The basic freedoms include freedom of speech, religion, education, assembly, press etc. In addition to the rights provided in the constitution, the European convention on human rights applies. There are various other provisions in the constitution which deal with the aspects of the protection of fundamental rights. However, some of the most elementary fundamental rights are not yet explicitly mentioned in the constitution, such as right to life, right not to be tortured, right to marry and prohibition from retroactive criminal laws. These potential gaps are filled by the international treaties. The constitutional court plays a key role in monitoring effective implementation of specific human rights. Since 1988, the Court has been responsible for supervising the application of some particular articles of the Belgian constitution such as the principles of equality, nondiscrimination and the rights and liberties in respect of education. With a special law of 2003, this competence was expanded to the Section II (Articles 8 to 32), and the Articles 170, 172 and 191 of the Belgian Constitution.66 Each stakeholder can appeal within 6 months of publication of a law, decree or ordinance to ask the Court to annul the law, decree or ordinance because of a breach of the aforementioned Articles of the Belgian Constitution or because of a breach of the division of powers between the federal state, the communities and the regions. Secondly, if a question comes up in a particular tribunal about the correspondence of laws, decrees and ordinances with the rules laying down the division of powers between the State, the communities and the regions or with Articles 8 to 32, 170, 172 or 191 of the Constitution, that tribunal has a task to refer a preliminary question to the Constitutional Court as the Court has the exclusive competence of interpreting the Constitution and the competence dividing rules. When the Court finds a breach of these articles, it will pronounce its decision inter partes, meaning the ruling has effect only between the parties of the specific case. Such a judgement, however, has great moral value and will force the parliament which made the targeted law, decree or ordinance in question to amend it.

2.2.2 Equality of rights 2.2.2.1

Individual protection/equal rights

Article 10 of the Belgian constitution lays down the basic rule of equality67. At the federal level, Anti-racism Law forbids discrimination on the basis of race, colour, nationality, descent, and national or ethnic origin. The Gender Law prohibits discrimination based on sex, including discrimination based on pregnancy, childbirth, motherhood, and sex change. Additionally, the Anti-Discrimination Law forbids discrimination on the basis of age, sexual orientation, civil Article 191 Constitution: All foreigners on Belgian soil benefit from the protection provided to persons and property, except for those exceptions provided for by the law. 66 Prof. Dr. L. Lavrysen (2014, September 18-21). The Belgian Constitutional Court and the separation of powers 67 Article 10 Constitution 65

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status, birth, wealth, faith or personal belief, political orientation, language, current or future health status, handicap, physical or genetic disorder, or social origin. Despite of those efforts, discrimination on the basis of gender, race, religion etc. remains a prevalent issue. In February 2014, a country-wide survey undertaken by Amnesty International found that a quarter of women in Belgium had allegedly experienced sexual violence at the hands of their partners and that 13% had been raped by someone other than their partners. A coordinated and comprehensive approach to combat these forms of violence was still lacking at the end of the year.68 According to a 2010 report prepared by Belgium’s Center for Equal opportunities and opposition to Racism (CEOOR), a total of 166 out of 1,466 cases launched in connection with discrimination and racism-related offenses involved faith. And half of them were linked to media organizations that publish unfair accusations or generalizations about members of a specific religion. Twenty-five percent of these cases concern recruitment or promotion while 8 percent involve services provided. The cases of discrimination in the latter category are mostly visible in real estate purchases or rentals. Some real estate agents and home owners are not inclined to rent out their properties to people who they believe are of a different faith. Additionally the numbers of cases reported in 2010 were 25 percent higher than the previous year.69 The behavioural tests indicate that people of foreign origin are discriminated against when it comes to invitations to job interviews. A candidate of foreign origin has 6.6 percentage points larger chance of experiencing a discriminatory disadvantage. 40% of the Belgian population believe that persons of foreign origin have a negative impact on the job market in Belgium and would like to see them sent back to their countries of origin when there are fewer jobs.70 In 2012, the Centre for equal opportunities and opposition to racism received 3,712 complaints within its area of competence (for all grounds of discrimination combined), including 660 complaints (17.8% of all complaints) relating to situations perceived as discriminatory on the basis of disability or state of health. A total of 261 cases were opened. Of these, 44% related to situations in the goods and services sector (housing, public services, banks, insurance companies, leisure etc.). A further 23% of the cases related to employment, while 11% concerned education and 5% involved the justice system and the police.71 Belgium is considered a liberal country regarding LGBT issues and attitudes toward granting the right to same-sex marriage are high above the EU average. Same-sex couples gained the right to marry or register in civil union in 2003. The Centre for Equal Opportunities and Opposition to 68 Amnesty International Report 2014/2015. The State of the World’s Human Rights. Amnesty International Ltd. London. 69 Discrimination against Muslims at all-time high in Belgium. (2011, June 23). Retrieved from http://www.todayszaman.com/world_discrimination-against-muslims-at-all-time-high-in-belgium_248292.html 70 ILGA-Europe Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe 2015. Retrieved from http://www.ilga-europe.org/resources/rainbow-europe/2015 71 Inter-federal Centre for Equal opportunities: diversity barometer. Retrieved from http://www.diversitybelgium.be/diversity-barometer

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Racism (CEOOR) is the body competent to deal with issues relating to discrimination on the ground of sexual orientation. Their annual report of 2006 shows that 7 per cent of all complaints concerned sexual orientation. Most of them (111 in total) were related to social problems (for example fights with neighbours), denial of access to goods and services, representations of homosexuality in the media and discrimination on the labour market. Seven complaints concerned hate crime. Findings in existing research show that 60% of LGBT persons in Brussels have experienced verbal assaults, LGBT youngsters are at higher risk for suicidal behaviour and LGBT persons and issues are largely invisible in schools. In 2012, a Belgium national was murdered in Belgium. Ihsane was gay and it was confirmed in the trial that the reason for his murder was his sexuality. This was the first murder in Belgium on the basis of homophobic sentiments.72 The 2008 Eurobarometer asked people, 'How would you personally feel about having a homosexual (gay man or lesbian woman) as a neighbour?' (1 meaning 'very uncomfortable' and 10 meaning 'very comfortable'). The figure in Belgium was 8.8; well above the EU average of 7.9 (Sweden was highest with 9.5 and Romania the lowest with 4.8). Since 2003, discrimination protections based on sexual orientation in employment, housing, and public and private accommodations have been enacted and since 2014 on gender identity/expression.

2.2.2.2

Recognition of relationships

In Belgium there are two types of legal recognised relationships: civil marriage and legal cohabitation.73 Marriage is provided in Article 143 of the Belgium Civil code. Article 143 defines marriage as a contract between people of same sex or opposite sex. The minimum age of marriage is 18 years.74 If someone younger than 18 wants to marry he or she needs consent from the parents. The average age for men to get married in Belgium is 32 and for women it’s 29.6.75 In 2003 Belgium was the second country in the world to recognize same-sex marriage. As mentioned above, in Article 143 of the Belgium Civil code marriage is defined as a union between same or opposite sex, this amendment was brought in the basic law. The age of consent for homosexuals was equalized in 1985. Article 372 of the Penal Code sets the age of consent to 16, regardless of sexual orientation and/or gender. This was briefly increased to 18 for same-sex sexual activity in 1965 by the addition of Article 372bis to the Penal Code, which was repealed in 1985. The right to gay marriage is also available to foreigners provided one of them is resident in                                                                                                                       72 Daders eerste homofobe moord in België veroordeeld (2014, December 22). De Standaard. http://www.standaard.be 73 Title Vbis, Book III of the Belgian civil code, from articles 1475 to 1479 74 Article 144 Civil code 75 United Nations Economic Commission for Europe "Mean age at first marriage by sex"

 

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Belgium. Registered partnership is open to same-sex and to different-sex couples, and even to couples of close relatives. It is not clear whether it is open to foreigners. Same-sex adoption was completely legalized in 2006 and is equalized with that of opposite-sex adoption. Lesbian couples have access to IVF as well. In 2015 a new law was passed by the Belgian senate allowing lesbian couples that become parents to avoid having to go through a sometimes long and cumbersome co-adoption procedure for the non-biological mother, and often disruptive for the whole family.76

2.2.2.3

National policy regarding homosexuals and same-sex couples

Belgium has been very dynamic with respect to same-sex marriage and has been referred to as one of the most gay friendly countries in the world.77 Unlike other traditional catholic countries Belgium legalized Homosexual activity already in 1795. In 1998, the Belgian parliament offered limited rights to same-sex couples by creating registered partnerships. They should register with a city clerk and formally assume joint responsibility for a household. Five years later, in January 2003, the parliament legalized same-sex marriage, giving gay and lesbian couples the same tax and inheritance rights as heterosexual couples. Support for the law came from both the Flemishspeaking north and the French-speaking south, and it generated surprisingly little controversy across the country. The long-dominant Christian Democratic Party, traditionally allied with the Roman Catholic Church, was out of power when parliament passed the measure. The original law only recognized the marriages of Belgian same-sex couples and couples from other countries where same-sex marriage was legal. Those provisions were broadened in 2004, to recognize any same-sex marriage as long as one member of the couple had lived in Belgium for at least three months. In 2006, parliament also granted same-sex partners the right to adopt children. In Belgium there are lot of openly LGBT politicians. Elio Di Rupo, the previous Prime Minister of Belgium was one of them and was one of the only three ministers in the world to identify as LGBT. Petra De Sutter (Groen, Flemish green party) became the first openly Trans woman to sit in the Federal Senate. She also ran in the elections to the European Parliament in May, but her party was unable to collect enough votes to obtain her a seat. She became a delegate to the Parliamentary Assembly of the Council of Europe. Since 1985, every ruling party in Belgium has the policy to adapt LGBT into the community and give them equality in law. In 2007 law on transsexuality was passed, which granted Belgians the possibility to change their legal gender, under the circumstances that the person has a ‘constant and irreversible inner conviction to belong to the sex opposite to that mentioned in the birth certificate’ and that ‘the physical body is adapted to the opposite as far as possible and justified from a medical point of view’. Prior to this law, gender change was only possible through a court Positive developments for lesbian couples in Belgium (2014, December 6). Marriage Equality. http://www.marriagequality.ie 77 http://www.marriagequality.ie/news/2014/12/06/positive-developments-for-lesbian-couples-in-belgium/ 76

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judgement. Hence after this law an increase in number of people changing their gender was observed.78 In 2013 the current government started taking comprehensive steps to fight discrimination on grounds of sexual orientation. In May that year, a new law prohibiting discrimination on grounds of gender identity and expression was introduced, which made it an offence to discriminate on the basis of sexual orientation. The government also intends to amend the 2007 law on legal recognition of gender. Secretary for equal opportunities expressed her motivation to amend the 2007 and relax the requirements for changing gender by removing the medical requirement.79 However, this has remained unclear so far. Belgium has a very active gay community. There are several gay clubs and associations which work for the gay rights, such as Alliage which is supported and partly funded by various official bodies. It supports gay and lesbians faced with discrimination and offers counselling services. Plenty of gay events are held every year including the annual Belgian Lesbian and Gay pride. Two protective agencies, the Centre for Equal Opportunities and Opposition to Racism and the Institute for the Equality of Women and Men, monitor discrimination, assist victims, and file discrimination charges. While all of Belgium’s Regions and Communities have adopted antidiscrimination legislation, the Centre for Equal Opportunities and Opposition to Racism and the Institute for the Equality of Women and Men have no competence at the Regional or Community levels. Currently, only the Walloon Region and French Community have delegated authority over discrimination issues to these protective agencies, while the remaining Regions and Communities have implemented their own anti-discrimination mechanisms. This system poses challenges for enforcement, as federal, Regional, and Community-level antidiscrimination agencies may have overlapping mandates or leave gaps.

2.2.3 Summary Belgium proves to be one of the most liberal countries in accepting gay rights. Politician Elio Di Rupo remarked in 2014: ‘We cannot tolerate that some are denied their rights and persecuted for their origins, their sexual orientation, their religion and their convictions’.80 In comparison to other European countries Belgium is a highly gay-friendly although these liberal views are not equally shared throughout the country. The law on same sex marriage generated little controversy across the country. The success and recognition of LGBT rights in Belgium was a time consuming process. Since 2015, the partner of the mother no longer needs to adopt the child, but is treated as if they were a heterosexual couples. However there are still a few areas where more work needs to be done, http://transgenderinfo.be/wp-content/uploads/2013/01/Transseksuele-personen-in-Belgi%C3%AB-2012.pdf Timothy Junes (2015, January 13). Staatssecretaris voor Gelijke Kansen Elke Sleurs wil af van medische eis in transgenderwet. ZIZO online. http://zizo-online.be 80 Andrew Pots (2014, April 4). Openly gay Belgian PM Elio di Rupo calls out African leaders on gay rights. Gay Star News. http://www.gaystarnews.com 78 79

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such as medical examination for the transgender and surrogacy. As for now adoption is the legal method, few hospitals in Belgium do perform surrogacy. It is however not certain whether the courts will accept it or not.

2.3

Bulgaria – Croatia – Slovenia Written by Victoria Kalogeratou81

2.3.1 Introduction The following section of the research will shed light on the regime of the protection of the rights of same-sex couples in the Balkan Peninsula generally, and afterwards, more specifically, in Croatia, Bulgaria and Slovenia. The target is the examination of the legal status of same-sex couples in the aforementioned countries and the possible agreement or disagreement of it with the standards set fourth by the European Convention of Human Rights as interpreted by the European Court of Human Rights. Lastly, possible condemnations of the above countries by the Court of Strasburg, regarding the violation of the guaranteed rights in the Convention for samesex couples, will be presented. There are two main pillars that have been formulating the legislation of the most of the countries of the peninsula up to the recent years. First of all, we are dealing with post-communist countries meaning that during Communism all those countries have been adjusting and creating their legal systems in order to serve the needs of the state as it was visualized to function by the leaders of the regime. Thus, since the state demanded couples able to procreate in order for the family as a whole to constitute part of the working class, granting rights to same sex couples would be unthinkable and unprofitable politically-wise. Secondly, religious influence in these countries should not be overlooked. The majority of the countries in the Balkan Peninsula are Christian-orthodox, thence any conception of granting same- sex couples, rights regarding their legal status would demand absolute independence and separation of church and state. However, this was not the case in Balkans, where Christianity, playing a vital role in the formulation of countries’ policies and legislation, excluding gay-couples from the enjoyment of the same rights with heterosexual couples, since the whole purpose of family, according to the Christian doctrine, is procreation. Since same-sex couples cannot procreate naturally, they are being classified as an anomaly of nature and consequently, they should not be granted rights. However, even if this explanation offers an adequate excuse for the state not to grant the right to religious marriage, it cannot explain why it took such a long time to establish a right to civil marriage or, at least, to the minimum right to proceed to a cohabitation agreement.

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Victoria  Kalogeratou  is  a  trainee  Lawyer  and  a  postgraduate  student  (LL.M.  in  International  Law  Studies)  at   the  Aristotle  University  of  Thessaloniki.  

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Regarding the phenomenon of homosexuality, generally, it is worth mentioning that several countries in the Balkans have adopted and enacted anti-discrimination policies and legislation in order to regulate or even terminate the phenomenon of discrimination. Interestingly enough, even if one of the bases of discrimination is sexual orientation, the aforementioned pieces of legislation did not include this very basis or they included it namely, but no relevant action was adopted. This proves that the protection of same-sex couples lacks in its very foundations, since not granting the same rights to heterosexual and homosexual couples according to the European Court of Human Rights constitutes a clear violation of Article 8 and 14 of the European Convention of Human Rights enshrining the right to family life and the right not to be discriminated respectively. It has to be taken into consideration that all the countries which have signed and ratified the ECHR are obliged to adopt non-discriminatory laws in conjuncture with the rights enshrined in the very Convention. Another thing that has to be mentioned is how homosexuality was being treated up to recently in the Balkans. Macedonia can be considered as an indicative example of the mistreatment towards gay people, since homosexuality was being described, even in the medical textbooks, as a mental disease. Moreover, according to a survey by the Centre for Civil and Human Rights in 2002 , over 80 per cent of the population of Macedonia faced homosexuality as a danger to the family and as a psychiatric disorder, while about 65 per cent described being gay as a crime. Moreover, there is strong misconception of the notion of homosexuality in the Balkans facing, often enough, the equation of homosexuality with pedophilia. For example, the Bulgarian National Union, a marginal nationalistic party, organized a roundtable on the theme “How to limit and win over the harm from homosexuality and pedophilia in Bulgaria?” in opposition to the planned gay parade in Sofia. Although statistics that exist on the rest of the Balkans states are not comprehensive or always recent, the situation there seems to also be grim, if not grimmer. According to a 2006 Cafebabel publication , 54.3 per cent of the 1,500 people surveyed by the Factor Agency said that homosexuals need to “receive medical treatment,” 14.5 per cent thought that homosexuality should be banned and 10 per cent want homosexuals to be “isolated” from society. Moreover, several incidents by local media have been reported in the whole peninsula regarding the marginalization of gay people that had expressed their sexual identity leading to poverty, verbal or physical abuse and discriminatory treatment. To wit, in some countries, local authorities not only do they not facilitate the work of NGOs supporting the relevant rights, but they, themselves, harass and hamper the aforementioned groups and the human rights defenders that support them. Moving on, more specifically, to the legal regime of gay couples in the Balkan Peninsula, progress was not been witnessed either in this field, since it is a general principle that laws reflect the idiosyncrasies of the societies in which they had been enacted. In June 2014 the government of Macedonia submitted a motion to the parliament to amend the country’s constitution and Legal Status of Same-Sex Couples in the EU 42


make it explicit that marriage is a union between a man and a woman excluding same sex couples from this right. Additionally, on 2014 the Slovak parliament adopted a relevant constitutional amendment proposed by the Christian Democrats and making a specific reference to marriage as a union explicitly between men and women. Moreover, Croatia even held a referendum the very same year regarding the support of a constitutional amendment of same nature which was proposed by the Catholic campaigners. This phenomenon started at 2005 in Latvia some members of the parliament voted for an analogous constitutional amendment and soon after that Hungary followed. In order to examine thoroughly the aforementioned practice, we have to take into consideration the changes of the institution of marriage that have occurred the past twenty years and their causes. First of all, the disclosure of the sexual identity of many people, even in more conservative societies in conjuncture with their demands for legal rights constitutes a basic pillar that led to these changes. Moreover, the emergence of different types of families, such as single parent families automatically created social need and therefore legal prediction. Nowadays, a significant number of European countries has offered equal rights to marriage for all couples and recognition of unmarried heterosexual and same-sex couples. To wit, a lot of European countries have formulated their legislation regarding adoption in order to cover same sex couples. Probably, the aforementioned legislative adjustments have induced, as a reaction, the constitutional amendments of the more conservative countries in order for the very core and essence of marriage, as they interpret it, to be preserved. As these groups justify their actions, they do not mean to incite discrimination against same-sex couples but protect and strengthen the traditional notions of family and marriage. Regardless of the mens rea of the initiators their target is being accomplished, the most of the prepositions are being adopted by the respective parliaments and same sex couples are not being legally recognizing, leading to the maintenance of the status quo. However, even if our role is not to criticize their intentions, what has to be taken into consideration is the fact that discrimination is being incited through these legislative initiatives, given the fact that there are a lot of countries that already recognize the aforementioned rights creating a legal precedence. The types of the existing families are being classified and the so called traditional families are taking the lead, whereas all the other forms of families (unmarried, heterosexual and single parent families) are being crowded and deprived of social care. Moreover, from a sociological perspective it is totally different not to recognize a right by simply not enacting permissive laws, and it is totally different to enact laws towards the opposite direction. What has to be taken into account is that the worst form of discrimination is treating equally people that are not equal according to Aristotle. The aforementioned quote is met in the aforementioned legislative amendments regarding the types of families due to the fact that they categorize families indicating that same-sex families, unmarried heterosexual families, or single  

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parent families are less worthy of state recognition and legislative regulation, respect and protection than married heterosexual couples. Inevitably, such practices lead to the marking of the families that are not considered to be traditional. In a democratic society one ought to examine both the motives and the actions of certain political organizations or parties that are trying to cover behind the proposals of constitutional amendments about the definition of marriage, their homophobic, discriminatory views. Such an example took place in Latvia in 2005 when, after the very first Pride parade that was conducted in Riga, a constitutional amendment was proposed. When she signed the amendment in 2005, Vaira V e-Freiberga, the then Latvian president, recognised that the parliamentary debate around the amendment “demonstrated very explicit intolerance and explicit homophobia, which I believe, in a democratic nation, neither should be unexpected or encouraged.” The exact same thing occurred in Croatia, as we will examine thoroughly later on, in 2013 when a referendum was denounced in order for the definition of marriage to be decided. The prime minister committed himself that this would be the last time that the majority would limit the rights of the minorities, opening a small window for the protection of gay people and the recognition of their rights. However, the problem is not only limited to the restriction –either actively or passively- of the rights of same sex couples in terms of partnership and adoption, but also to other civil and political rights. The loudest example was the amended Article 110 of the Latvian constitution for those who protested and opposed to the Pride parade in Riga and those who actually campaigned against the circulation of a schoolbook that contained neutral information on sexual orientation and, to add, those who initiated a referendum to ban popularisation and propaganda of same-sex relationships. Unfortunately, it constitutes a usual tactic for politicians that oppose to the protection of gaypeople’s rights to use the domestic laws of their countries at a wider level, i.e. in the European Parliament or in the European Commission in order to justify their actions and statements against the establishment of the aforementioned rights. Fortunately, the juridical instrument that monitors the application of the European Convention of Human Rights, the European Court of Human Rights, in several judgements such as in the case Kozak v. Poland clearly declared that the existence of a domestic law characterizing marriage as union between a man and a woman cannot justify any discrimination against same-sex partners. It is obvious that the Strasbourg Court does not adopt the notion of absolute equality, rather that the relative equality, trying to expand the protective scope of the articles that enshrine private and family life. The same route is followed by the US Supreme Court, as well. According to the US Supreme Court the Defence of Marriage Act which indicates that marriage is only an heterosexual union is unconstitutional- after all- because it “disparage[s] and ... injure[s] those whom the State, by its marriage laws, sought to protect in personhood and dignity”. The US Supreme Court called for a wider interpretation of the whole trend about the constitutional limitations to the definition of marriage. According to the judges of the Supreme Court these constitute harmful initiatives and  

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aim to diminish the personhood and dignity of a minority. They are completely opposed to the protection of human rights, the absoluteness of human dignity and equality as a principle and the respect to all human beings. Having examined the general trends regarding the protection of the rights of gay-people in the Balkan Peninsula firstly, and in Europe and USA at a wider level, we can safely say that laws are inclusive and state practice tends to be exclusive from time to time. The danger in this situation lies on the fact that greater rights are at stake. Marriage and parenthood are indispensable parts of a person’s life and fulfil the person; however the question that arises is whether conservative states can, actually, put limitations on other civil and political rights (such as the right of expression, or the right of assembly and association) on a sexual discrimination basis. Hereupon, follows a thorough analysis of the regime of protection of the right to marriage in the countries of Slovenia, Croatia and Bulgaria.

2.3.2 Bulgaria Bulgaria is one of the countries that is trying to adjust and formulate its domestic legal order according to the standards set forth by the European Union Directives and the new trends initiated by the Strasbourg Court according to the interpretation of the European Convention of Human Rights. An issue that had to be dealt with, immediately, was the prohibition of any form of discrimination. Of course, it is quiet understood that such a change within the very core of the legal rules of a country presupposes a preparation. What was reassuring is that Bulgaria did not have to proceed to this change not being provided with guidelines. The aforementioned guidelines were set forth by the Directives provided by the EU and they were pretty much revolving around the banning of discrimination on any ground mentioned under international law or domestic legislation, explicitly including sexual orientation. The forms of discrimination that were explicitly banned as such and defined, include inter alia direct and indirect discrimination; harassment; incitement to discrimination; and victimisation. This, however, constitutes a general framework which was targeted, mainly, at the protection of socially sensitive groups within the workplace, regarding job opportunities e.t.c. One of the main benefits provided amongst EU Member States and third countries is that under the protective scope of Article 8 of the ECHR and the general protection of family life, LGBT third country nationals who are spouses of EU citizens are entitled in principle to exercise their rights of freedom of movement, another fundamental EU right, and to reside within the territory of the Member States. However, same sex marriages in Bulgaria are not covered under the relative articles of family life. Consequently, these sorts of movements are prohibited in Bulgaria. A few cases about rejection of registration of same-sex marriages have been reported, however court procedure have not initiated yet. After conducting meetings and discussions with representatives of legislative bodies and judges, members of several pro human rights NGOs report that same–sex marriages would not be interpreted in a way allowing benefiting from Multilateral Legal Research Group 45 Â


regulations concerning family reunification and the Family Code of Bulgaria is not about to change soon. An indicative example of the reluctance of changes to the family code is the following: in July 2008 BGO Gemini, which is an NGO protecting gay people rights in Bulgaria pursued litigation because of the discriminatory provisions of the Family Code draft that regulated as marriage only the union between a woman and a man and that did not recognise the factual cohabitation of same-sex couples. The case finished with a recommendation to the legislators who drafted the Family Code. The PADC recommended to legislators to recognise the same rights for same-sex couples as those of different-sex couples with the reasoning that the current provisions are discriminative and violate international treaties to which Bulgaria is a party. However, the legislators did not comply with the recommendation. Neither same-sex marriage nor cohabitation between same-sex partners are recognized by the Bulgarian legal system. Cohabitation would be recognized as a legal relationship resembling to marriage, meaning a union between a man and a woman, according to the discussions conducted during the formation of the new Draft of the Bulgarian Family Code in 2006-2007. Under Article 7 of the Family Code, a marriage can be agreed between a man and a woman upon mutual consent declared explicitly before a civil registration clerk. With this definition of marriage and the inclusion of cohabitation in the code only as a form of marriage, once again same sex couples are totally excluded from legal benefits. The new Bulgarian Family Code which was adopted in October 2009 did not indicate either any will to equalize the rights of same-sex couples to those of the married different-sex couples. Even if the idea of including same sex couples in the code was intensely discussed at a social level, it was inhibited by the majority of the members of the Bulgarian Parliament. Great obstacles are being imposed to adoption as well. Single- sided adoption or registration of a child is forbidden if one of the two same-sex partners is already a parent. Consequently, problems of inheritance law are arising, since children are not allowed to inherit their parents if they are of the same sex. Adoption is not recognized either, with the argument of better upbringing when the child is raised by two different-sex parents. Thus, in Bulgaria, there is no existing legal mechanism in order to officially recognize, protect or provide with any rights the LGBT couples. No references in the literature could be provided, as there was no relevant literature found by the research. Nevertheless, under Article 75, para. 3 of the International Private Law Code of Bulgaria “a marriage which was concluded in another state according to the rules and criteria set in the national legislation of that state is recognised by the Bulgarian authorities if the couple established their habitual residence in the given state in conjunction with Article 79, para. 2 of the Code. In practice, however, as previously stated, the aforementioned recognition is being hampered.

2.3.3 Croatia Both male and female same-sex sexual activity has been legal in Croatia since 1977. Croatia is a Legal Status of Same-Sex Couples in the EU 46 Â


country that bans any form of discrimination based on sexual orientation by law and by severe punishment. However, total equality between different and same sex married coupled in Croatia has not still prevailed. In 2003 in Croatia a new law that had to do with unregistered cohabitation was voted and that was the first formal recognition of same sex relationships. Even if the wellknown 2013 referendum resulted to the definition of marriage, constitutionally, as a union between a man and a woman exclusively and consequently prohibited same-sex marriages, there are other laws that provide for equal treatment. One such example us the Life Partnership Act of 2014 which after its introduction, allowed same-sex couples to enjoy the exact same rights with married heterosexual couples, except from adoption. In order for this gap to be covered a new institution was introduced to Croatia named “partner-guardianship” and actually allows homosexual couples to adopt in a form of step-parenthood. As expected, Centre-left, centre, and green political parties have been the main supporters of the LGBT rights in Croatia, managing to succeed an admirable outcome considering their position and the mental-backgrounds of the Balkan countries, generally. On the other hand, right-wing, centre-right political parties and some conservative NGOs such as the one called “In the Name of Family” in a collaboration with the Roman Catholic Church are strongly opposing to the extension of the rights of gay people. In 2015, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) ranked Croatia 5th in terms of LGBT rights out of 49 observed European countries, which constitutes a huge an improvement compared to the previous year's position of 12th place. Croatia is among 11 member countries that make up a LGBT Core Group at U.N. on Ending Violence and Discrimination. However, the main question that remains is whether this indirect reassurance of LGBT rights is indeed enough or not. Why is constitutionally, marriage between same-sex couples an unthinkable action? Why should the rights be ensured only by side legal actions and not straight by the constitution? After 2003 and the first LGBT pride in Croatian a law supported mainly by the centre-left political parties was voted in Croatia. This law recognized in same-sex couples which were cohabiting for at least three years similar rights with heterosexual co-habiting couples only regarding inheritance and financial support. Additional benefits related to tax, joint property, health insurance and pension were not granted and adoption was regulated with other pieces of legislation. In 2005 a proposal about registration of homosexual couples was made by Šime Lučin (SDP) and the independent Ivo Banac. Even if the Croatian constitution itself bans discrimination on the grounds of sexual orientation, the proposal was rejected and many reactions were raised on behalf of the pro-religion conservatives. On July 15th. 2014 the new “Life Partnership Act” was voted and changed the legal regime and status of same-sex couples in Croatia. They were equated with married heterosexual couples in every right except form adoption rights. The first life partnership in Croatia took place in Zagreb Multilateral Legal Research Group 47


on September 5, 2014 between two men. Within a year of the Sabor passing the law 80 life partnerships were conducted. Regarding adoption rights, full adoption was prohibited for gay couples. However the institution of partner-guardian was offering a few benefits. According to this institution a co-partner was allowed to be the partner-guardian of his/her partner’s child. Moreover, adoption to single persons was allowed. The guardian parent could acquire the responsibilities of a parent either on regular or on a temporary basis. If those rights last beyond 30 days, then the decision must be certified by a notary. Both partners are responsible for the significant decisions in the child’s life and after a possible dissolution of the partnership the non- biological partner is allowed to maintain personal relationships with the child after the Court’s order. Additionally, a relationship between the non-parent life partner and the child may be continued if the parent-partner dies (under the condition that the other parent has also died), is considered unknown, or has lost their parental responsibilities due to child abuse. However, the non-parent life partner can also ask for the establishment of partner-guardianship while the parent-partner is alive under the condition that the other parent is considered unknown or has lost parental responsibilities due to child abuse. Consequently, through an indirect road, adoption was a vivid choice for same sex couples.

2.3.4 Slovenia Slovenia is considered to be one of the most liberal Slavic and Central European countries due to the pro human rights laws it has enacted and the protective policies it follows. An indicative example of that is the fact that same sex sexual homosexual activity has been legal since 1977, when in other countries the very same situation was presented as a psychiatric disease. Moreover, registered partnership for same sex couples was voted by law since 2006. This law covered only property relations, the right/obligation to support a socially weaker partner, and the inheritance rights to a degree. It did not grant any rights in the area of social security such as insurance and pension rights. A huge debate initiated in the Slovenian Assembly after the adoption of this law. The Slovenian National Party deputies were opposing to the recognition of same-sex partners. The opposition Social Democrats and Liberals, on the other hand, argued that the law proposed was too weak, refused to take part in the voting, leaving the chamber. The bill was voted with 44 in favor and 3 votes against. Afterwards, the government proposed a new bill which included social security aspects. This bill was passed in July 2005, and became effective on 23 July 2006. In 2009 the Constitutional Court gave the parliament of Slovenia six months in order to cure the situation that was caused by not treating equally to registered partners and married partners regarding the inheritance of property .The court adjudicated that this discrimination was unconstitutional and the government committed itself that it would prepare and launch a new law which would legitimize same sex marriage. At the same time, discrimination on basis of sexual orientation in the workplace, for employment seekers, for students and teachers in every educational field, for housing and for providing of services has been banned since 1998 by law Legal Status of Same-Sex Couples in the EU 48


that was not only descriptive but active entailing consequences, if not abiding by it. Nonetheless, there has been a controversy concerning same sex marriage, which has caused ambiguous opinions. A first attempt to legalize same sex marriages took place in 2009, but the referendum conducted back then rejected the preposition. Nonetheless, the fact that a referendum conducted about this very issue indicates that both people and the government were concerned about that, which ultimately leads us to the assumption that social awareness and sensitivity were increased in Slovenia compared to other Balkan countries. In April 2014, the Ministry of Labour, Family, Social Affairs and Equal Opportunities has launched a new bill that would provide for partnership the exact same rights of marriage except for adoption and assisted reproduction. Until May 2014 the law was being discussed and formulated but the danger of it not passing was very vivid due to the early parliamentary elections that were about to take place in July. The bill was announced to be put on hold until the consultation on a draft. Later on the bill was put on hold until the parliament considered the proposal. In March 2015, this issue was brought about again in the Slovenian Parliament and a new bill from the Slovenian Assembly. A lot of frustration has burst out regarding this proposal with a series of events spreading out as follows: At the end of 2014 the United left proposed a new law to the parliament in order to legitimize same sex marriage. The basis of the proposition was that all members of the society should be provided with equal rights by extending constitutional rights to all sensitive and discriminated groups. Even though the constitution reassures equality of rights gay couples have been deprived of these rights. In January 2015 the bill found a general, either vocal or silent support by the governing coalition. However SDS snd NSi opposed to the bill. When the time for the second reading of the bill came, it passed by 11 to 2 voted by the Committee on Labour, Family, Social Policy and Disability of the National Assembly in February 2015. In the third reading of the bill, it passed by the General Assembly with 51-28 votes in March 2015. However, there was a motion for retaking the vote in the Assembly, which was rejected by the National Council in 14-23 votes. Yet, the opponents of the bill, could not stop reacting until March 2015 when they announced that they have collected more than 80,000 signatures to call for the referendum. They filed 2,500 of them, as required, in order to be allowed to proceed with the petition for popular vote. On 17 March 2015, the leader of the SMC parliamentary group said that, although the party supports same-sex marriage legislation, it would not try to prevent possible referendum on the issue. United Left, the main proponent of the bill, criticized the statement. However, on 19 March, the SMC politicians clarified that they are just against blocking proponents from collecting signatures under the petition, and that the party will support the motion to block the referendum, when signatures are submitted. The Slovenian Constitution contains an article about the prohibition of popular votes on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms. This was exactly the legal ground on which the National Assembly voted 53–21 to block the referendum. The proponents of the referendum appealed this decision before the Constitutional Court in April 2, 2015. Multilateral Legal Research Group

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After long deliberations of the Court, and after the political intervention of the Roman Catholic Archbishop of Ljubljana, Stanislav Zore, in order to support the referendum, the Court decided that it was not within the mandate of the National Assembly to block a referendum. Interestingly, enough, no mention to Article 90 of the Slovenian Constitution was made, and this was the article in on which the Assembly was based. On 4 November 2015, the National Assembly decided that the referendum will take place on 20 December 2015. Needless to say, that many members of the LGBT community fear that the strict definition of marriage within the constitution will inhibit the assessment of the law and the outcome of the referendum.

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2.4

Cyprus Written by Panagiotis Viopoulos82

2.4.1 Historical facts and human rights legislation The Republic of Cyprus, the island state located in the southeastern Mediterranean Sea, gained its independence by the British colonial authorities in 1960. It was the beginning of a fragile political cooperation between the two major communities of the island: the majority of Greek Cypriots and the minority of Turkish Cypriots, under the regime of three powers of guarantee: United Kingdom, Greece and Turkey83. In 1974, the Turkish invasion took place and the occupation of the northern part of the island had just started. A few years later, in 1983, the authorities of the occupied northern part declared the “Turkish Republic of Northern Cyprus” (TRNC) which has been condemned by Resolutions of the UN Security Council84 and now it is recognized only by Turkey as an independent state. Since 1974, many attempts of solving the question of Cyprus were held but none of them reached a mutually accepted conclusion. Despite the aforementioned facts and situation, the Republic of Cyprus accessed the EU in 2004 as a whole, including, in other words both the “de facto created parts” of the islands. However, the “acquis communautaire” is active only in areas where the government of Cyprus can exercise effective control.85 As a result, all the provisions of EU law, including the Charter of the Fundamental Rights of the EU, are applicable only in these areas. Since the day of its independence, the Republic of Cyprus constitutes a Presidential Republic in which the President, the Head of State, has substantial competences and is elected directly by the Cypriot voters. The President and the Ministerial Council are exercising the executive power in Cyprus, while the legislative power belongs to the House of Representatives. As for the general human rights legislation in Cyprus, the Constitution of the Republic of Cyprus contains many provisions recognizing and protecting human rights, either individual or social. In particular, the second part of the Constitution (Articles 6 to 35) is devoted to them. Although there is no concrete reference to the freedom of sexual orientation, the broad interpretation of Article 15 which provides the respect to any person’s private and family life can guarantee the above-mentioned freedom. Furthermore, concerning the protection of marriage and family, Article 22 provides the necessary constitutional guarantee. It shall be also mentioned that the

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Panagiotis  Viopoulos  is  an  Undergraduate  Law  Student  at  the  Aristotle  University  of  Thessaloniki.   Article II of the Treaty of Guarantee(1960) 84 UNSC Resolution 541 (1983) 85 Mallinson, Cyprus: a Historical Overview, p.19-37 83

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House of Representatives produces also legislation on the issues of human rights in Cyprus, specializing the constitutional provisions and that the judicial precedent is also considered as a source of law, following the influence of the British Common Law.86 As it has been already mentioned, the provisions of the EU Charter of Fundamental Rights are applicable in the areas where the government of Cyprus can exercise effective control, meaning in the non-occupied part of the island. The Republic of Cyprus is a state party in international treaties on the protection of human rights which are applicable in the internal legal order, too. Cyprus has become a state-party of the ECHR just a few time after its independence, so its provisions are applicable in Cyprus and, according to Article 35 of the ECHR, any person in Cyprus can apply before the ECtHR if his or her rights are abused, but only under the prerequisite of passing all the provided instances of internal judicial system. Other than the role of the ECtHR in guaranteeing the protection of human rights in Cyprus, the internal judicial system plays also an important role to the recognition and appropriate punishment of any state’s or individual’s action that violates a person’s right. We may mention that there is no constitutional court in Cyprus. As for non-judicial bodies operating in the monitoring of human rights, the Commissioner of Administration(otherwise the Ombudsman of the Republic of Cyprus) and the Equality and Anti-Discrimination Body very often receive complaints about violation of person’s rights, including of course the right to sexual orientation. International bodies or EU bodies are also committed to monitor the respect of human rights in Cyprus, as well as many NGOs which are now operating, after many years of silence, in the field of the protection of the LGBT persons’ rights.

2.4.2 Discrimination issues on the grounds of sexual orientation 2.4.2.1

The Penal Law provisions: history and current situation

When someone is referring to the criminalization of homosexual acts in Cyprus, the references to the famous “Modinos vs. Cyprus” case and the respective judgment of the ECtHR are inevitable.87 Specifically, former Articles 171 to 173 of the Penal Code, active in Cyprus since 1885(!) as a law of the existing at that time British Empire of the “Victorian age”, were providing that carnal homosexual acts were considered as a crime. Moreover, the violation of the aforementioned provisions could lead someone to an imprisonment of about 5 to 14 years. The issue of being compatible to the Constitution of the Republic of Cyprus has reached the Supreme Court of the country, but it had recognized that they are not breaching the constitution and rejected the application against these legal provisions. Under the described above background, Alekos Modinos, a gay man from Cyprus, applied back in 1989 to the ECtHR claiming that these legal provisions were breaching Article 8 of the ECHR and that the criminalization of homosexual acts were causing strain, apprehension and fear of prosecution to 86 87

http://www.kyprianou.com.cy/index.php?pageid=34&lang=gr Case of Modinos vs. Cyprus, para. 7,8,10,17,20,26

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persons that had a homosexual sexual orientation. ECtHR recognized in its judgment, published in 1993, that the Republic of Cyprus did breached Article 8 of the ECHR since there were affection and interference to the applicant’s private life by the prohibition of homosexual acts. After this judgment, Alekos Modinos became a symbol of the LGBT community in Cyprus and he has been struggling for many years for the recognition and the protection of LGBT persons’ rights in Cyprus.88 Following the above mentioned judgment, as well as the concerns expressed by the authorities of the European Community during the negotiations for the accession of Cyprus in it, the Penal Code was modified and the provisions which were criminalizing homosexuality were annulled and replaced. Regarding the current legal framework of the penal law on the sexual relations between homosexuals, current Article 171 of the Penal Code criminalizes any sexual act or any attempt of committing a sexual act between two men if one of them is under the age of 17. Actually, the legal age of consent to a homosexual act is 17 years old. Article 154 of the Penal Code considers as crime any sexual act or attempt of sexual act with a woman between 13 and 16 years old, meaning that the legal age of consent for a heterosexual act is also 17 years old. But the aforementioned provision refers only to the legal age of consent for women and there is no concrete legal provision on the legal age of consent for men apart from Article 174 which criminalizes carnal sexual acts with a boy under the age of 13. The respective crime exists for sexual acts against girls under the age of 13, too. As a result, the sense that there is no differentiation on the legal age of consent for heterosexual and homosexual acts is not clear. However, there is no legal provision concerning lesbian sexual acts, neither in the former legal framework nor in the current. Therefore, someone may assess that either the legislator in Cyprus could not “imagine” in the past the possibility of homosexual acts between women, meaning that in the past they might have been also prohibited in parallel with the homosexual acts between men or that they had never been deemed as a criminal act by the Cypriot law. Taking into consideration the non-discrimination principle, the right of free expression of personality and mainly the decriminalization of such sexual acts between men, it is more than clear than nowadays there is no prohibition or criminalization for the lesbian homosexual acts. As for the hate crime and hate speech, during the previous years, there were no penal law provision that was considering the homophobic speech as a crime. Actually, there was not such a concrete reference to the law. However, Article 51A could be interpreted in a broad way so as to include any motivation to commit a crime based on the different sexual orientation of the victim.89 Just a few days earlier, the House of Representatives voted in favor of a legislative initiative that criminalizes the instigation of violent acts against LGBT persons because of their

88 89

“Legal Study on Homophobia and Discrimination on the grounds of sexual orientation and gender identity”, published by FRA “Legal Study on Homophobia and Discrimination on the grounds of sexual orientation and gender identity”, published by FRA

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sexual orientation.90 There were fierce reactions by many members of the House on this initiative which would be presented later in the research.

2.4.2.2

2.4.2.2.1

Discrimination or non-discrimination issues arising in administrative procedures and in state’s mechanisms The right of assembly and the “gay pride” parades

The right of assembly is recognized and protected by Article 21 of the Constitution of the Republic of Cyprus. However, the first “gay pride” parade took place in June of 2014. The delay of the realization of this initiative is not based on problems arising in the administrative level, such as rejection of providing the necessary permission. Before 5 years and even more, the LGBT persons in Cyprus were not organized in associations and other groups due to the negative stance of the local society. That is the reason why there were no attempts for holding a “gay pride” parade in the previous years.

2.4.2.2.2

The stance towards LGBT persons (men) in the context of the Cypriot army

There is no doubt that gay men in Cyprus have the obligation to be recruited and serve in the Cypriot army for a certain period. However, even until 2014, the Ombudsman of Cyprus has received some complaints and has found that very often soldiers were characterized as ones having a kind of psychological problems. So, they could not serve the army but this characterization may cause problems in getting some permissions or enjoying other rights in several sectors of the administrative mechanism. The fact is that there were many persons that were included in this category because of the fact that they were homosexuals. The findings of the Ombudsman and of other bodies revealed the aforementioned issues of clear discrimination on the grounds of sexual orientation. Also, such incidents are gradually decreasing.91

2.4.2.2.3

Discriminatory actions against the freedom of expression

As mentioned also in other parts of the research, the conservative background of the Cypriot society against LGBT persons, notwithstanding the progressive steps of the recent years, and the danger of being strongly condemned and stigmatized lead many LGBT persons in Cyprus not to express themselves as they wish and of course not to reveal their sexual orientation, despite the fact that it is a right constitutionally protected. Apart from the general perspective on a discrimination that hits the LGBT persons’ freedom of expression, there are also specific http://www.philenews.com/el-gr/koinonia-eidiseis/160/259359/en-meso-entonon-topothetiseon-i-voulipoinikopoiise-tin-ypokinisi-vias-kata-loat 91 “Legal Study on Homophobia and Discrimination on the grounds of sexual orientation and gender identity”, published by FRA 90

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incidents that indicate some problems on the implementation of this freedom. In particular, in November 2014, police authorities entered a photography exhibition organized by a LGBT association and seized the photographs claiming that they present a “lewd context”. This action was condemned by both judicial and political factors as a discriminatory one and the exhibition took place again.92

2.4.3 Homosexual Couples and Legal Bonds 2.4.3.1

Marriage

First of all, the right to marriage is recognized and protected by the Article 22 of the Cypriot Constitution. As the constitutional provision does not make any concrete reference to the heterosexuality of the couple, it could be interpreted as not posing heterosexuality as a prerequisite of constitutional force in order two persons to be married. Consequently, a modification of the family law that would extend the right of marriage to homosexual couples would not breach the constitutional provision. This line of interpretation however is not the prevailing one in a rather socially conservative country, where marriage is still considered to be – like in Greece- a bond between a man and a woman only. As it has been already indicated, two same-sex partners do not have the right to get married in Cyprus. Article 3 para.1 of the relevant marriage law clearly provides that marriage can take place only between a man and a woman. Only the heterosexual marriage can be considered as existent and valid in the Cypriot legal order. Therefore, all the rights created because of the marriage are available only for the heterosexual couples (for instance, rights on heritage, right to adopt children, property rights etc.). There are several social factors, especially LGBT associations, exercising pressure towards the recognition of the political type of marriage as a right to homosexual couples. Given that especially the Cypriot society, but also the political world of the country, are accepting a great pressure by more conservative lobbies, make the discussion on this issue a bit premature.

2.4.3.2

Civil union93

Apart from the marriage, all the previous years and until 2015, there had not been another legal type of civil union between two partners, either heterosexuals or homosexuals, meaning that same-sex couples had been totally excluded from the right of adjusting their common life on a stable and permanent legal basis. Many initiatives on establishing the contract of civil union, as an alternative to the marriage, had not concluded to the adoption of the respective law because

Annual Report of 22015 for Cyprus published by http://rainbow-europe.org/#8636/0/0 For the whole text of the “Law on Civil Union of 2015” (in Greek) follow the link: http://www.mof.gov.cy/mof/gpo/gpo.nsf/All/13619D477EE08945C2257F16002C668D/$file/4543%209%2012 %202015%20PARARTIMA%201o%20MEROS%20I.pdf

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of the huge pressure exercised by the Greek Orthodox Church of Cyprus, the lack of political will and the fact that the society may have not been eager to accept such a reform. The aforementioned situation has recently changed. A legislative initiative aiming to the establishment of the contract of civil union for both heterosexual and homosexual couples begun in 2014 and it has been materialized in November 2015 when the Cypriot House of Representatives enacted the “Law on Civil Union” which is now in force. In May 2015, the Ministerial Council decided to proceed to this initiative, confirmed the draft law and sent it to the House of Representatives in order to be voted and become an active law of the state.94 Many deliberations on the draft law with social factors and among the representatives in the Committee of Internal and Legal Affairs, which has been the responsible for such legislative initiatives, took place during the previous year. The “Law on Civil Union of 2015”(hereinafter : Law on Civil Union) provides with full details the conditions, the procedure and the consequences as far as the conclusion, the implementation and the annulment or the dissolution of the civil union are concerned. First of all, the law makes no reference to the sex or gender of the partners going to be bonded with a civil union. In particular, Article 5 refers to “persons”, meaning that its scope includes both same-sex and different-sex couples. This article also requires in its first paragraph that both partners must consent freely to the conclusion of the civil union. The paragraphs 2 and 4 of Article 5 enact the conditions under which a person is not considered to have freely consent and paragraph 3 poses the conditions under which a persons is not entitled to be partner in a civil union. The differentiation of sex is not included in them. Moreover, Articles 6 to 10 refer to the procedure by virtue of which the civil union shall be concluded and come into force. Article 11 et seq. are dedicated to the annulment of a civil union. A civil union may be recognized as null when it has been concluded in breach of the conditions of Article 11, namely in case of an already existent marriage of one of the partners, of a civil union between persons who are relatives by blood or by marriage indefinitely in straight order and collaterally up to 5th and 3rd degree, respectively, as well as in case of a civil union between the adopter and the adoptee, the conclusion of a civil union with persons legally incapable of being bonded in this way and when the procedure established in Article 6 has not been respected. Pursuant to Article 12, a void civil union exists when there is no free consent either of one or of both partners. Articles 13-15 provide the procedure for the annulment of such a civil union and Article 16 adjusts the fate of children, meaning that it can be practically applicable only in civil unions of heterosexual couples. Furthermore, Articles 17-18 adjust the dissolution of the civil union, whilst Articles 19-22 regulate the issues concerning children, such as the presumption of paternity and maternity, thus they apply only in civil union between partners of different sex.

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http://www.philenews.com/el-gr/top-stories/885/255395/symfono-symviosis-gia-eksynchronismo-tis-koinonias

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Concerning provisions on which same-sex couples are practically interested, Article 23 refers to the obligation of maintenance while the civil union is still in force. Each of the partners shall contribute analogically to their forces. Following on the obligation for maintenance born after the dissolution of the civil union, Articles 24-27 provide the conditions under which an expartner is entitled to claim maintenance from the other party of the civil union, as well as when this obligation is excluded or restricted. Moreover, Articles 28-32 refer to the procedure to be followed before the competent courts in order the claims on the obligation of maintenance to be adjudicated. As far the financial relations of the partners are concerned, Article 33 poses as a principle that the assets of each partner are preserved. However, the following articles of the Law on Civil Union provide certain conditions and regulations concerning the claim of each partner for participation in the after-acquired assets and in the general amount up to which their partner’s assets have been increased. Article 44 entails that when it comes to hereditary issues deriving from the civil union, the provisions of the Law on Wills and Succession shall be applicable by analogy. The Law on Civil Union contains also provisions which adjust several technical matters. Its scope, as provided by Article 43, includes all civil unions concluded in Cyprus as well as in other states provided that they have been concluded in compliance with the rules of the foreign state’s legislation on civil unions. The Law on Civil Union of 2015 is in force from the 9th of December 2015 which is the date of its publication in the Official Gazette of the Republic of Cyprus.

2.4.4 Cypriot society’s perspective on the issue of the LGBT persons’ rights 2.4.4.1

The perspective during the previous years

Before examining the society’s stance towards LGBT persons and their rights, it is very useful to take into consideration the fact that the Greek Orthodox Church of Cyprus plays a significant role to the formation of the common view as it can influence a great part of the Greek Cypriot population. Furthermore, during these years, there were not even lobbies of LGBT persons in Cyprus and they were not at all organized in associations, groups etc. The results of a series of surveys held before about ten years indicate much on the perspective that exists in Cyprus. In particular, above 50% of the participants estimated as “wrong” the marriage between homosexuals and the homosexual sexual relationships as well. Furthermore, Cyprus was considered as one of the three most “discriminatory” states on the grounds of sexual orientation in the EU.95 That is the reason why Alekos Modinos has admitted, even before several years, that the problems of LGBT persons in Cyprus are not known in public since they refrain from expressing their complaints to the Ombudsman or to the Equality and Anti-Discrimination

95

“Social Study concerning homophobia and discrimination on grounds of sexual orientation in Cyprus”, published by FRA

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Body, because they are afraid of being stigmatized and humiliated.96 Even though the presence of LGBT persons in everyday life is not something weird for the modern societies, there were, or maybe there still are, people in Cyprus who insist that they do not know any person that is gay.97 Additionally, the workplaces were areas where homophobia had been expressed, since there were associations of employees, especially in the public sector, opposing to the possibility of working together or even being considered as “colleagues” with LGBT persons.98

2.4.4.2

The perspective after the progress of the recent years

Concerning deliberations before the adoption of the Law on Civil Union of 2015 for the ones held in the responsible parliamentary committee indicate that the majority of the social factors participating has been in favor of this legislative initiative. On the contrary, the Greek Orthodox Church has been again opposing to the initiative for the contract of civil union. Alongside to the Church, the “Association of dealing with social problems” kept also a negative stance.99 Responding to the allegations of the Church, the Cypriot Minister of Internal Affairs had said that the view of the Church is known, but everyone shall stay in the margin of their “jobs”.100 Furthermore, worries had been arisen due to the possibility of granting to homosexual couples united with a contract of civil union the right to adopt children. This right has not been granted, but certain political parties asked for a concrete reference that would exclude homosexual partners under a contract of civil union from the right to adopt children. This claim, however, has not been materialized in the law adopted. It would be also very interesting to be added that even the association “Accept LGBT-Cyprus” has not asked for the recognition of that right, recognizing (!) from its part that society in Cyprus is not ready to accept such an initiative.101 “Gay pride” parades are also a controversial issue, especially in Cyprus. On the one hand, the majority of the common view is not opposing to this initiative and the administrative authorities do not bring any problem to the organizers of that event. On the other hand, the Greek Orthodox Church is expressing a ferocious negative stance against “Pride” parades, stating that homosexuality constitutes an “affliction: and “a moral downfall” that ends up to “increase in divorces, paedophilia, deaths because of AIDS”, reminding again, through the Archbishop, its strong objection to the contract of civil union. This reaction led also to a demonstration of conservative blocs, including Greek Orthodox clerics, against the “Pride” parade.102 Not only the Church, but also politicians have expressed their objection to the enhancement of the protection of LGBT persons’ rights and their respective extension. For example, several “Legal Study on Homophobia and Discrimination on the grounds of sexual orientation and gender identity”, published by FRA http://www.sigmalive.com/archive/simerini/news/social/270488 98 Annual Report of 2015 for Cyprus published by http://rainbow-europe.org/#8636/0/0 99 http://www.philenews.com/el-gr/koinonia-eidiseis/160/262773/archise-i-syzitisi-gia-to-symfono-symviosis 100 http://www.kathimerini.com.cy/mobile.php?modid=2&artid=206064 101 http://www.philenews.com/el-gr/koinonia-eidiseis/160/263851/tha-apokleisoun-yiothesies-gia-omofylazevgaria 102 Annual Report of 2015 for Cyprus published by http://rainbow-europe.org/#8628/0/0 96 97

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representatives reacted fiercely against the decision of the majority in the House to criminalize any act that instigates violence against persons based on homophobic motive, exaggerating and claiming inter alia that “the unnatural sexual act is winning a prize”(!), “the preaching of any religion turns into something prohibited: and “100.000 Cypriots may end up to prison with this law”.103

http://www.philenews.com/el-gr/koinonia-eidiseis/160/259359/en-meso-entonon-topothetiseon-i-voulipoinikopoiise-tin-ypokinisi-vias-kata-loat

103

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2.5

Czech Republic Written by Iga Mlynarczyk

2.5.1 General principles of jurisdiction The Czech Republic is state in Central Europe, Member State of the European Union. Its total population is estimated at 10.5 million people (September 2015). After World War II liberated Czechoslovakia became a one-party communist country. It is a country in the Central Europe, sharing its borders with Slovakia, Austria, Germany and Poland. The Czechs represent roughly 64% of its total population of over 10.5 million.104 The Czech Republic became independent on 1 January 1993, after Czechoslovakia was peacefully dissolved into Czech Republic and the Slovak Republic. The Czech Republic joined NATO as of 12 March 1999, and the European Union as of 1 May 2004. The Czech Republic is a multiparty parliamentary democracy. The Prime Minister Bohuslav Sobotka (since 17 January 2014) is the head of government, and the President Miloš Zeman (since 8 March 2013) is the formal head of state. The current Constitution was adopted on 16 December 1992.105 The Charter of Fundamental Rights and Basic Freedoms106 forms a part of the constitutional order of the Czech Republic.107 Article 2(1) of the Constitution sets basis for democracy and the separation of powers, providing that: “All state authority emanates from the people; they exercise it through legislative, executive, and judicial bodies” 108. In addition, Article 2(3) states the limits of the state power, providing that: “State authority is to serve all citizens and may be asserted only in cases, within the bounds, and in the manner provided for by law109”. The Charter of Fundamental Rights and Basic Freedoms is incorporated into the Constitition by reference to Article 3 of the Constitution, and sets the fundamental human rights and freedoms that are protected by the state. In this respect, the Constitutional Court of the Czech Republic was established by virtue of Article 83 of the Constitution,110 providing that: “The Constitutional Court is the judicial body responsible for the protection of constitutionality”.111 The Constitutional Court began to work on 15 July 1993 and, in its function, serves to protect the people against violations of the Constitution. Serving this purpose, the Constitutional Court is http://data.worldbank.org/country/czech-republic, the 2014 estimate, (last visited 06-04-2016). No. 1/1993 Coll. Full text available on: http://www.psp.cz/en/docs/laws/constitution.html 106 No. 2/1993 Coll. 107 Article 3 of the Constitution 108 The text of the Constitution may be found at: https://www.constituteproject.org/constitution/Czech_Republic_2002.pdf (last visited 06-04-2016). 109 The text of the Constitution may be found at: https://www.constituteproject.org/constitution/Czech_Republic_2002.pdf (last visited 06-04-2016). 110 Although the history of the Czech Constitutional Judiciary dates back to 1921, see: http://www.usoud.cz/en/history/ 111 The text of the Constitution may be found at: https://www.constituteproject.org/constitution/Czech_Republic_2002.pdf (last visited 06-04-2016). 104 105

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accessible to any individual or legal entity provided there are sufficient grounds to file a Constitutional Compliant as prescribed by law. The seat of the Constitutional Court is established in Brno, the second largest city of the Czech Republic. The current Chief Justice of the Constitutional Court is Pavel Rychetský, assumed office on 6 August 2003. Other institutions safeguarding the fundamental human rights and freedoms in the Czech Republic are, primarily, the Public Defender of Rights and, among others, the Czech Helsinki Committee. Anna Šabatová is currently holding the office of the Public Defender of Rights of the Czech Republic (in the office since 18 February 2014). To this extent, the mandate of the Public Defender of Rights includes defending persons, including the victims of discrimination, against the conduct of authorities and other institutions exercising state administration. At the governmental level, there are another two bodies in charge of equality and human rights matters: Council for Equal Opportunities of Women and Men and Council for Human Rights. The Governmental Council for Equal Opportunities of Women and Men112 was established in October 2001113 and started its activity at the end of 2002. The main activities of this Council are: •

Negotiating and advising on the policy of the government in promoting equal opportunities for women and men.

Determining the sphere of priorities for the projects of different ministries aimed at supporting the implementation of equal opportunities.

Identifying the actual problems in society concerning equal opportunities.

Evaluating to what extent the principles of equal opportunities for women and men are adopted in practice. Based on its observations, the Council prepares proposals promoting equal opportunities for women and men. •

Government Council for Human Rights114 is an advisory body to the Czech government on issues of protection of human rights and fundamental freedoms, which was established by the government in December 1998. It is composed of 20 members, a chairman and a vice-chairman. The chairman holds function of the Authorized Representative of the Government for Human Rights. The Council monitors the observance of the Constitution of the Czech Republic and of the Charter of Fundamental Rights and Freedoms. It monitors the fulfilment of international commitments in the field of human rights and fundamental freedoms at the national level. The Czech Republic is bond by, among others, the Convention on the Elimination of all forms of                                                                                                                       http://www.vlada.cz/cz/pracovni-a-poradni-organy-vlady/rada-pro-rovne-prilezitosti/the-government-councilfor-equal-opportunities-for-women-and-men-29830/ 113 10 October 2001, No. 1033 114 http://www.vlada.cz/en/ppov/rlp/government-council-for-human-rights-50632/ 112

 

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Discrimination against Women. Within the Council, the Committee for Elimination of all Forms of Discrimination of Women has been established. Next to the institutional bodies in charge of protection and promotion of human rights, there are NGOs that statutory goals are same oriented. The most known is the Czech Helsinki Committee - the non-governmental non-profit organization operating in the Czech Republic since 1993. The mission of the Committee is striving for respect to principles of natural human rights and enforcing these rights in the whole society.115 Its main areas of activities are monitoring of respecting the human rights in the Czech Republic, fighting racism and intolerance, prison system and criminal justice, social and legal counselling and human rights education. 2.5.2

Equal rights

On 17 June 2009 the Czech Republic adopted anti-discrimination legislation116 which guarantees the right to equal treatment and prohibits discrimination in access to employment, business, education, healthcare and social security on the grounds of sex, age, disability, race, ethnic origin, nationality, sexual orientation, religious affiliation and faith or worldview. The passing of the Anti-Discrimination Act by the Czech Chamber of Deputies was a necessary step to avoid legal proceedings by the European Commission117 for failing to implement the obligations contained in the EU Race Equality Directive118 and the Employment Equality Directive119. The Czech Republic went even further and introduced laws120 on gender equality in the employment environment. Accordingly, the discrimination on grounds of gender while asserting the right to employment is strictly prohibited. There is a legal obligation to pay equal salaries, despite of the gender, for the same work or the work of the equal value for the same employer. The Labor Code121 prohibits discrimination, as well as humiliation in the workplace, in particular sexual harassment is targeted. Moreover, equal right to parental leave is guaranteed to both, women and men. Based on the enacted legislation, as well as on the public opinion surveys122, the Czech Republic can be considered as one of the most liberal European countries with regard to lesbian, gay, bisexual, transgender (LGBT) rights. The respondents to the surveys claims that they generally perceive a social environment as comparatively favourable for LGBT people. According to the studies, they are generally less likely to be victims of violence, harassment or discrimination, less exposed to negative attitudes, and not forced to avoid certain locations or behaviours for fear of http://www.helcom.cz/cs/en/o-nas/. Anti-discrimination Act, 195/2009 Coll. 117 http://www.ceetrust.org/article/306/ 118 Council Directive 2000/43/EC 119 Council Directive 2000/78/EC 120 Law on the Employment No. 1/1991, Wages law No. 1/1992 121 No. 262/2006 Coll., English translation available on http://www.mpsv.cz/files/clanky/3221/labour_code.pdf 122 For instance In 2012, Fundamental Rights Agency performed a survey on discrimination among 93,000 LGBT people across the European Union. 115 116

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being assaulted, threatened or harassed.123 About 74% of non-national respondents say that the Czech Republic is better country to live in as an LGBT person than their country of citizenship.124 According to 2006 Eurobarometer, almost half of the respondents personally knew someone gay or lesbian, 52% supported same-sex marriage and 62% supported registered partnerships. However, only 18% supported same-sex adoption. In terms of legal recognition of same-sex couples, unregistered cohabitation has been possible since 2001 with acknowledgment of inheritance and succession rights in housing, as well as hospital and prison visitation rights similar to married heterosexual couples. With regard to registered partnership, almost a decade passed before the law was approved. The bill was rejected several times, in 1998, 1999, 2001, and 2005, to finally pass the Chamber of Deputies on 16 December 2005. It was the seventh version of a registered partnership bill, that finally passed on to the Senate. Eighty-six MPs present voted for it and 54 rejected the bill125. The bill was also adopted by the Senate on 26 January 2006, to be further vetoed by the President of the Czech Republic at the time - Václav Klaus.126 On 15 March 2006 the President's veto was overturned by the Chamber of Deputies and the law came into force on 1 July 2006.127 Since then, the Czech Republic joined a circle of European Union countries that allow registered partnerships for same-sex couples, which encompass similar right to those of married couples, with the exclusion of the right to adoption of children. After the years have passed, it appears that none of the doomsday predictions about the demise of the “traditional family” made by the law’s opponents, have materialized.128

2.5.3 National policy regarding homosexuals and same-sex couples In contrast to the legal and social limitations during communism, the Czech Republic has become socially liberal over past three decades and is one of the most gay-friendly countries in the European Union. This increasing tolerance is most probably linked to the low level of religious belief in the country, especially if compared to the neighboring countries like Poland or Slovakia.

European Union lesbian, gay, bisexual and transgender survey. Main results. European Union Agency for Fundamental Rights, Luxembourg 2014, page 99. 124 European Union lesbian, gay, bisexual and transgender survey. Main results. European Union Agency for Fundamental Rights, Luxembourg 2014, page 95. 125 http://www.radio.cz/en/section/curraffrs/czech-mps-approve-law-on-same-sex-partnerships 126 http://www.radio.cz/en/section/ice_special/gay-groups-angered-by-presidents-veto-of-registered-partnershipbill 127 Dimitry Kochenov, GAY RIGHTS IN THE EU: A LONG WAY FORWARD FOR THE UNION OF 27, in CYELP 3 [2007] Page 483 128 http://www.nytimes.com/2014/12/31/opinion/slovak-politics-and-gay-rights.html?_r=0 123

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In 1998, the Government adopted the Action Plan entitled the Government Priorities and Procedures for the Enforcement of the Equality of Men and Women129. The Plan contains around fourty action measures, which implementation is evaluated every year in an annual report130. Controversly, the general participation rate of women in the Czech labour market equals only to 57.2% and Czech Republic has signigficantly higher (25.5%) unadjusted gender pay gap131 than in other European countries (16.4% on the avarage).132 The social events for LGBT community are supported in the bigger cities by the local authorities. In 2010, the first official gay guide and map for the Czech capital was issued by the Prague Information Service, under the aegis of Prague city council. In years 2008, 2009 and 2010, a Queer festival took place in the country’s second largest city of Brno. The first Prague Pride gay parade took place in August 2011, with official support from mayor and other politicians. The event attracted some negative attention from Religious-Conservative groups and the far right, with a group of young Christians attempted to protest the parade. Nevertheless, as already mentioned, the Church does not have significant influence on the society. The second Prague Pride gay parade took place one year later and since then the Gay Pride parade is held in Prague annually.

2.5.4 Summary Controversially, based on the research performed, it seems that discrimination based on the sexual orientation is not among the most recurring issues in the Czech Republic. The not so religious society is rather open and tolerant towards homosexuals. State acknowledged existence of the same-sex couples by allowing them to enter into registred civil partnerships, in which they can benefit from the rights assimilated to those of the married couples. Nevertheless, society is still reluctant in terms of permission to same-sex couples of the children adoption. The World Economic Forum’s Gender Gap Equality report from 2004, placed the Czech Republic on 96th place on a ladder of 142 countries. Its present ranking, below countries such as Russia and Uganda, has raised concern and highlighted the fact that progress on gender equality issues has be slow and inadequate.133 Close collaboration between NGOs and governmental institutions may bring some positive changes in this sphere.

Approved by the Government resolution No 236/1998 of 8 April 1998 http://www.un.org/womenwatch/daw/Review/responses/CZECH-REPUBLIC-English.pdf 131 The overall difference in income between women and men 132 The current situation of equality in the Czech Republic – Country profile, European Commission, 2013, page 4, available on http://ec.europa.eu/justice/genderequality/files/epo_campaign/country_profile_czech_republic_en.pdf 133 http://www.radio.cz/en/section/curraffrs/czech-republic-still-struggling-with-gender-equality-issues 129 130

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2.6

Denmark Written by Konstantina Meletiadou134

2.6.1 General Principles of Jurisdiction Denmark ended the absolute monarchy which had begun in 1660 after signing the Constitution of Denmark on 5 June 1849. Therefore it established a constitutional monarchy which is organized as a parliamentary democracy. The Kingdom of Denmark has a central government regime although the Faroe Islands and Greenland are autonomous parts of the kingdom with similar political structures and legal rights. More specifically, they manage most of their domestic affairs while the central Danish government is responsible for more crucial matters such as foreign relations, financial affairs, internal security, and defense. What is more, Denmark became a member of the European Union in 1973. Also, it is among the founding members of NATO and the United Nations. The Danish State legislates through the Danish Parliament which is called Folketing. Folketing constitutes the legislative assembly in Denmark which means that passes the Acts that apply in Denmark.135 Bills and proposals are discussed in 23 permanent committees. Apart from the 29 members of each committee which represent different political parties, a group of citizens or representatives from organizations can participate in these committees so to express their views and influence the committee’s work on a Bill. After the 3rd reading of the Bill in the Chamber, it becomes law.136 The Kingdom of Denmark has adopted on 5 June 1849 its Constitutional Act named Grundloven. In its context various human rights and related rights, mainly civil and political rights such as but not limited to Freedom of Expression (Section77), Freedom of Association (Section 78) and Freedom of Assembly (Section 79) are guaranteed. Human Rights which are enshrined in the Constitution as fundamental principles possess special status and take precedence over other conflicting statute law or case law since they were adopted according to the special procedure mentioned in Section 88 of the Constitutional Act. Although Freedom of Expression is widely enshrined in the Constitution, there are some boundaries mentioned in the Danish penal code. According to § 266b of the Danish penal code, in which the rules against hate speech and racism are set down, “Whoever publicly, or with intention to disseminating in a larger circle makes statements or other pronouncement, by which a group of persons is threatened, derided or degraded because of their race, colour of skin, national or ethnic background, faith or sexual orientation, will be punished by fine or imprisonment for up to 2 years”. Automatically that means that this provision prohibits discrimination against persons based on sexual orientation and gender identity. Any person who proceeds to a statement or imparts other information that 134

Konstantina  Meletiadou  is  an  undergraduate  Law  student  at  the  Aristotle  University  of  Thessaloniki  

135http://www.thedanishparliament.dk/About_the_Danish_Parliament.aspx 136

http://www.thedanishparliament.dk/Committees_and_delegations/Committees.aspx

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threatens, scorns, or degrades a group of persons because of their sexual orientation is liable to a fine or to imprisonment for not more than two years. Also according to the 2nd§ of the same article, if a person is found guilty of a crime and the motive of it was the sexual orientation of the victim, the judge must consider that motive to be an aggravating factor when determining the sentence.137 By being an EU member, Denmark has implemented into its national legislation the Employment Directive 2000/78/EC through Act no. 459 of 12.06.1996 No. 459 om forbud mod forskelsbehandling påarbejdsmarkedet m.v. [on Prohibition against Differential Treatment in the Labour Market, etc.] with subsequent amendments. This Act prohibits direct and indirect discrimination on grounds of race, colour of skin, religion or faith, political opinion, sexual orientation, age, disability and national, social or ethnic origin. However the Employment Directive 2000/78/EC has been implemented into Danish legislation only as regards to employment. The Kingdom of Denmark has ratified the European Convention on Human Rights (ECHR) on 3 September 1953, but was not implemented in Danish law until its incorporation on 29 April 1992 which means that ECHR became a part of Danish law. ECHR primarily guarantees a number of civil and political rights such as Article 9- Freedom of thought, conscience and religion, Article 10- Freedom of expression and Article 3- prohibition of inhuman or degrading treatment in conjunction with Article 14- prohibition of discrimination. Regarding the United Nations Treaties, Denmark has signed and ratified the most of them. However, it has not incorporated them into Danish law since it was considered as judicially unnecessary given the fact that Denmark is legally bound to comply with the treaties once it has ratified an agreement. Therefore United Nations Treaties such as but not limited to the UN International Covenant on Civil and Political Rights (ICCPR) and the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) are regarded as valid sources of law in the Danish courts.138 Last but not least, there is a specific judicial body; the Board of Equal Treatment.139 It was established by the first of January 2009. The board is an administrative organ which handled cases concerning discrimination based on race, ethnic origin or gender which are covered by the Danish anti-discrimination legislation. The board also treats cases concerning sexual orientation. Decisions made by the board are binding to the parties, and the board can bring cases of noncompliance to the Danish courts. The board cannot start cases on its own initiative. The Board is composed of three judges who act as presidency and nine additional members with a law degree. Decisions made by the Board are final and binding for both parties and can be brought before the City Courts. The Board is able to award compensation to victims. Any citizen can file a complaint to the Board of Equal Treatment. If a decision by the Board of Equal Treatment is http://www.state.gov/documents/organization/236730.pdf http://www.humanrights.dk/about-us/human-rights-in-denmark/human-rights-in-danish-law 139 The board was established by Act no. 387 of 27.05.2008 om Ligebehandlingsnævnet [on the Board of Equal Treatment] 137 138

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not followed by a party the Board has an obligation to bring the case before the courts at the request of the other party. The Board of Equal Treatment bases its decisions on written information received from the complainant, the defendant and the secretariat of the Board of Equal treatment. It is not possible to present a complaint to the Board in person. It is possible however to request a meeting with the Secretariat. A victim of discrimination can also bring the case before the ordinary courts unless the prohibition of differential treatment is mentioned in a collective agreement and the victim is a member of a trade union. The complaint then has to be handled by industrial bodies. If the case is brought before the ordinary courts, the judge can decide to let a third party with a legal interest in the outcome of the case intervene in support of one of the parties.140 The intervening party will however not be able to appeal the case independently.

2.6.2 Equal rights 2.6.2.1

Chronological review141

As for the rights of the LGBT community generally it has to be underlined that homosexuality was a crime in Denmark until 1930, at least for men. Danish law from 1683 stated: “Relations against nature is punishable by execution”. By a law of 1866, the death penalty was replaced by a sentence of prison labour. It wasn’t until 1933 that sex between adult men (aged over 18/21) was de-criminalised. In 1948 the first association for both homosexuals and bisexuals, named Forbundet, was founded. During 1955, “the great pornography affair” came in the spotlight. That meant that a very large number of men were arrested and given prison sentences in 1955. Axel Lundahl Madsen was sentenced to one year in prison, and his future partner, Eigil Eskildsen (later named Eigil Axgil), was sentenced for eighteen months. Ekstra Bladet, a popular nation-wide magazine at the time, estimated that between thirty and seventy people committed suicide to avoid the attention of the police in Copenhagen. In 1958 the membership of Forbundethad fallen drastically. As a result of the police action only very few dared to join the association. In 1961, Folketinget, the Danish Parliament, enacted “Den GrimmeLov” which is translated in English as the “The Ugly Law” which criminalised relations with male “prostitutes” aged under 21, and the payment in question needed to be no more than a packet of cigarettes or money for a taxi home. In 1965 and after major political work by Forbundet, and with support from some politicians, as well as sections of the press, there was a change of attitude in the Parliament and “The Ugly 140 141

Retsplejeloven § 252 (The Administration of Justice Act section 252) http://lgbt.dk/english-2/

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Law” was repealed. In 1967 the legislation concerning prostitution was made equal for heterosexual and homosexual relations. In 1968 the Minister of Justice maintained that the police must intervene if two men danced together or had a closer intercourse. This restriction was, firstly, removed in 1973. In 1969, after consistent application for twenty years, Forbundet was officially registered as an association and is thereby recognised by the authorities. The registration was under the name “Landsforeningen for homophile” meaning the National Association for Homophiles, having as a secondary name of Forbundetaf 1948. In 1971 the Bøssernes Befrielsesfront- BBF, the Queer Liberation Front, was founded. The members of BBF were thinking that Forbundetaf 1948 was too bourgeois and “polite”, and the term “homophile” was self-oppressing. Thus a more dynamic movement was necessary in order to reassure their rights. BBF’ chose to use the derogatory term bøsse (which at that time is equivalent to ‘queer’, but later becomes more neutral and equivalent to ‘gay’). BBF took the offensive linking politics and sexuality. The objectives were the sexual-political awareness of gays, and the enlightenment of the general population with regard to gay politics, such as in the form of streetaction and “gay caravans” around the country. From 1972, Bøssehuset (The Queer House) was set up in Christiania which was a former military barracks in Copenhagen taken over by members of the counter-culture, where BBF held weekly meetings and starts basis-groups. Later came Bøssekoret (The Queer Choir), Bøsserup Pigegarde (Queertown Girls Guard) and Den Storkøbenhavnske Bøssescene (The Greater Copenhagen Queer Stage) with well-attended cabaret shows. After 2006, Bøssehuset became a membership organisation for LGBT’ers. In 1974 Lesbisk Bevægelse- LB, a Lesbian Movement was established by activist lesbians from Rødstrømpebevægelsen, The Red Stocking Movement, and from Forbundetaf 1948, and it was based at Kvindehuset, the Women’s House, in Copenhagen. LB published the magazine Kvinder-Kvinder (Women-Women) until 1978, and from 1982 Hvidløgspressen (The Garlic Press). Lesbian weeks were organised at a camp on the appropriately named island of Femø. LB was also active in the Kvindehøjskolen (The Women’s College), but LB lost momentum around 1990. The gay movement in Denmark grew during the 1970s, both inside and outside Forbundetaf 1948. From the end of the 1970s, local branches were set up, and the Association opened cafés and discos in several towns, the so-called Pan-klubber, but they ceased in 1994 as a result of the Association’s financial down-turn. In 1976 the Danish Parliament amended the law so that the age of consent (15) is the same for homosexual relations as for heterosexual, and rescinded the paragraph of the penal code giving up to four years imprisonment for sexual immorality with persons of the same gender under the age of 18. In 1978 Forbundetaf 1948 became a co-founder of ILGA- International Lesbian and Gay Association. In 1981 The Board of Health removed homosexuality from the Danish list of mental illnesses  

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which was considered to be one of the biggest victories of the movement. Gå-Ud-Gruppen, the Outreach Group, was set up to offer supplementary sex-education in state schools by giving information about homosexuality to the senior classes. In 1982 the name was changed to Landsforeningen for BøsserogLesbiske (LBL), Forbundetaf 1948, the National Association for Gays and Lesbians (LBL). In 1983 the library for gays and lesbians opened after many years of compiling a collection. At that time, the term “registered partnership” was created by LBL in a legislative proposal that the association presented in 1983. The name was the only thing that survived from the proposal, but it became the international standard. In 1986 proceeding to a huge and unprecedented step the Parliament enacted a law giving equal treatment to co-habiting persons of the same gender as married couples with respect to inheritance tax. A parliamentary commission in order to throw light on the situation of homosexuals in society published a review named: “Want or Need? - male and female homosexuality”. The commission’s work led to a number of legislative initiatives including the registered partnership. A majority in the commission concluded with the recommendation that the partnership was not introduced, but the opposition in Parliament put it forward and enacted the law in 1989. In 1987 the Parliament amended the law against discrimination to include sexual orientation. A year later, the commission on homosexuality submitted its report, ‘The Situation of Homosexuals’. In 1989 the Parliament enacted the law on registered partnership. The law was the first of its kind in the world, and the Danish registered partnership becomes the model for work in other countries. During the 1990s, the remaining Nordic countries introduced similar legislation, and other countries followed a while later. Several of them went still further with marriage, as does eventually the pioneering country, Denmark.

2.6.2.2

The present regime of the rights of same-sex couples

After this chronological review, the present regime of the rights of homosexual/same-sex couples will be examined. After the introduction of the preposition of same-sex marriage by the government of Helle Thorning-Schmidt and the approval of it by the Folketing in the 7th of June 2012, and the receiving of Royal Assent in the 12th of June 2012, same-sex marriage was legalized in the 15th of June 2012 with Denmark being the eleventh country in the world proceeding to such consolidation for same-sex couples. However, same-sex couples maintained rights previously through the registered partnerships, already existing in Denmark. Moreover, it is worth noting that the status of same-sex couples is different in Denmark’s two constituent countries, Greenland and Faroe Islands. When in terms of Greenland, legislation to allow same-sex marriage passed the Parliament of Greenland on 26 May 2015. The Danish Parliament ratified the legislation in the 19th of January 2016 and the marriage law is expected to enter into force in the 1st of April 2016. Regarding the Faroe Islands, same-sex couples neither do they have the right to civil- partnership nor to marriage. The country is extremely unwilling to legislate in favor of same-sex marriage and any attempts of the past have failed. Faroese  

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legislation only prohibits hate speech based on religion and ethnicity. However, in 2006 a proposal was adopted by the Lagting [Faroese Parliament] to include sexual orientation in the provision prohibiting hate speech in the Faroese Criminal Code. When it comes to partnership, it should be underlined again that Denmark was the first country that enacted such legislation in October 1989. Efforts in order for the partnerships to expand to same sex couples as well had been made since 2003 however they kept failing until 2009 when the law was successfully expanded. All the rights provided with marriage legal and fiscal were also provided to partnership with two main exceptions: − laws making explicit reference to the sexes of a married couple did not apply to registered partnerships, and, − Regulations by international treaties did not apply unless all signatories agree. Divorce for registered partners followed the same rules as opposite-sex divorces. Registered partners had to meet one of the following residency requirements to form a union: (1) one partner had to be a Danish citizen and be resident in Denmark, or (2) both parties must have been resident in Denmark for two years. Citizens of Finland, Iceland, and Norway were treated as Danish citizens for purposes of the residency requirements. Additionally, the Justice Minister could order that a citizen of any other country with a registered partnership law similar to Denmark's be treated as a citizen of Denmark. Moreover in 2006 the lesbian couples and lesbian individuals were provided with the right of artificial insemination treatment. In the 1st of July 2010 the law that allowed adoption between same sex couples entered into force as long as they were under the regime of registered partnership. To wit, even if registered partnership was a purely civil union the Church of Denmark allowed priests to perform ceremonies that would give blessings to gay couples. On 15 June 2012, the registered partnership act was repealed and replaced by the new gender-neutral marriage law. The heated discussion about gender-neutral law was ongoing since 2006 when it was supported by the Minister of Family that since partnership offered the exact same benefits to same sex couples except from religious ceremonies, it would be unnecessary to enact such legislation. Many public figures such as the Social Liberal Party's Equality Rapporteur, Lone Dybkjær, the Copenhagen Mayor for Culture and Recreation, Pia Allerslev and Lord Mayor of Copenhagen, Ritt Bjerregaard supported during the years same-sex marriage openly. In the beginning of 2012, the government published two draft bills. One bill introduced a gender-neutral definition of marriage and allowed same-sex couples to marry either in civil registry offices or in the Church of Denmark. Existing registered partnerships would have the option of converting to a marriage, while no new registered partnerships would be able to be created. According to the other bill, individual priests would be allowed to refuse to conduct same-sex marriages. Other religious communities would also be allowed to conduct same-sex marriages but would not be compelled to do so. The bills were under consultation process until Legal Status of Same-Sex Couples in the EU 72


22 February 2012. The thought behind those bills was relying on the mere fact that the Danish state did not want to suppress any part of the society, but also wanted to secure fundamental rights for homosexual couples. In the 14th of March 2012, the government submitted both bills to Parliament. The bills were approved on 7 June 2012 and received royal assent on 12 June 2012. The new laws took effect on 15 June 2012. The new legislation was opposed by the Danish People's Party and the Christian Democrats, a religious conservative party, although the latter were not represented in the Danish Parliament at that time. Under the law, ministers can refuse to carry out a same-sex ceremony, but the local bishop must arrange a replacement for their church building.

2.6.3 National policy regarding homosexuals and same-sex couples142 2.6.3.1

Freedom of movement

Homosexual couples have the right to freedom of movement, which means that an EU citizen is able to bring his family members such as his spouse or registered partner for three months, or six months if the EU citizen is seeking employment, or for the duration of the residency of the EU citizen. Family members must however hold a valid visa if they are citizens of a country with a visa requirement for Denmark.

2.6.3.2

Asylum and subsidiary protection

Concerning asylum and subsidiary protection, the term “sexual orientation” is not considered to justify qualification as a refugee according to the understanding of the term as stipulated in the Geneva Convention. However a homosexual can obtain a Protection status if he or she risks the death penalty or torture if expelled.

2.6.3.3

Family reunification

The family reunification is allowed which means that if a person has relatives in Denmark, he or she can apply for a residence permit in accordance with the regulations for family reunification as defined in the Danish Aliens Act.

2.6.3.4

Freedom of assembly

Freedom of assembly is constitutionally protected (as well as protected according to international human rights obligations) and therefore applied to homosexuals. According to section 78 (1) of Act no. 169 of 05.06.1953 Danmarks Riges Grundlov [The Constitution of Denmark], “The citizens shall be entitled without previous permission to form associations for any lawful purpose.” Thus no                                                                                                                       142 Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity by Christoffer Badse and Martin Futtrup (Copenhagen, Denmark- February 2010)

 

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pro-LGBT demonstrations (Gay Pride, etc.) have been prohibited due to the fear of public disorder caused by counter-demonstrations. On the contrary the City Council has agreed on a grant to the Copenhagen Pride for their annual gay parade for the year 2008. The parade applies for funding each year and last year received a grant of DKK 150,000 (€ 20,000).143

2.6.3.5

Main Non-Governmental Organzations working on the topic of homosexuals’ rights

In Denmark there are several Non-Governmental Organizations which can give guidelines and legal advice to victims of discrimination on the ground of sexual orientation. A NGO which should be mentioned is Landsforeninen for bøsser, lesbiske, biseksuelle og transpersoner (LGBT Danmark) [the Danish National Association of Gays & Lesbians]. LGBT Danmark is a sexual and gender political interest group that for example gives guidance to victims of discrimination due to their sexual orientation. In Denmark there are also other groups which focus on interests of transgender people, e.g. Transseksuel.dk and Patientforeningen for Transseksuelle (PFT) [Patient Association of Transgender People]. Copenhagen Police, Copenhagen Municipality, the Danish Institute for Human Rights, The Society of Gays and Lesbians as also World Outgames have in 2009 initiated cooperation and a campaign with the aim of stopping or reducing hate crimes. Therefore they have established a webpage to ease the reporting to the police by victims or witnesses of hate crimes and in general to raise awareness of the issue.

2.6.4 Judicial review As for the judicial review of the topic, human rights observers alleged the government denied asylum to some LGBT asylum seekers from Uganda who claimed to be at risk of persecution in their home country due to their sexual orientation. The government declared the denial was based on the merits of the asylum petition since all the technical prerequisites were not fulfilled, and it did not consider sexual orientation as a factor. Moreover, the individuals whose asylum was denied did not present any evidence of prior persecution in their home countries as a result of their LGBT status but claimed potential future persecution.144 According to the latest available data reported by the security and intelligence service, 33 of the 320 hate crimes recorded in the country in 2012 were “sexually oriented,” almost 10%, although a number were unrelated to sexual orientation or gender identity. Authorities actively investigated and punished those complicit in abuses.

http://www.cphpost.dk/get/105729.html M.T.D. Jensen (2008), The situation concerning homophobia and discrimination on the grounds of sexual orientation in Denmark. Sociological Country Report. 143 144

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2.6.5 Summary Denmark has traditionally been (and) characterised as progressive and liberal in terms of attitudes regarding sexuality and same-sex couples. In fact the general opinion in Denmark is that Denmark is an open-minded society and so this remains towards LGBT persons. The above can be proven by the fact that Denmark was the first country in the world to legally recognise samesex partnerships. Surveys also show that the approval of homosexuality has increased significantly in the last three decades. Since the achievement of the registered partnership law in 1989, same-sex couples have gained the right to marry and the right to adopt step children and lesbians have gained the right to assisted insemination.145

                                                                                                                      145 The social situation concerning homophobia and discrimination on grounds of sexual orientation in Denmark, Fundamental Rights Agency (FRA)

 

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2.7

Estonia Written by Chrysovalantou Stampouli and Georgia Bakatsia146

2.7.1 General Principles of Jurisdiction 2.7.1.1

Government function

Estonia is a parliamentary republic with a central government. Legislative power is vested in the parliament (Riigikogu) that is unicameral and consists of 101 members that are elected in general elections on the basis of the principles of proportional representation147.Executive power is vested in the Government of the Republic that must have the confidence of the parliament and moreover, shall be accountable to the parliament for its actions.148 The Government consists of the Prime Minister and Ministers. The head of state is the President of the Republic who is elected by the Riigikogu for a five-year term, for a maximum of two consecutive terms.149 The Constitution of Estonia provides the President of the Republic with a wide range of powers; however, his role is mainly ceremonial.150

2.7.1.2

Human rights in Estonian Constitution

The supreme law of Estonian State is the Constitution. The current Constitution of Estonia was enacted after a referendum on the 28th of June, 1992, a year after the independence of Estonia from the Soviet Union.151 According to the Constitution of Estonia, the supreme power of the State is vested in its citizens and is exercised either through referendum, or by electing the Riigikogu. The second chapter of the Constitution of Estonia sets forth human rights, liberties and duties. As such, fundamental rights and principles such as the principle of equality, the right to free movement, the right to human honour and dignity, the right to private life, freedom of expression, freedom of assembly, the right to free movement and the right to family are guaranteed under the Constitution of Estonia. As far as the principle of equality is concerned, according to ar. 12 of the Constitution of Estonia “No one shall be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on 146

Chrysovalantou  Stampouli  is  a  trainee  Lawyer  and  a  postgraduate  studen  (LL.M.  in  Transnational  &   European  Commercial  Law,  Arbitration,  Mediation  &  Energy  Law)  at  the  International  Hellenic  University  of   Thessaloniki.  Georgia  Bakatsia  is  an  Attorney  at  Law  and  a  postgraduate  student  (LL.M.  in  Public  Law  and   Political  Science)  at  the  Aristotle  University  of  Thessaloniki   147http://www.riigikogu.ee/en/introduction-and-history/riigikogu-tasks-organisation-work/what-is-riigikogu/ 148Ar. 86 of the Constitution of Estonia, https://www.constituteproject.org/constitution/Estonia_2011?lang=en 149Ar. 77 -85 of the Constitution of Estonia 150Estonia profile – Leaders, http://www.bbc.com/news/world-europe-17220812 151http://www.estonica.org/en/The_state_order_of_Estonia_in_its_historical_development/Restoration_of_indep endence_and_the_fourth_Constitution_1992_-%E2%80%A6_/

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other grounds”. Therefore, in spite of the fact that sexual orientation is not explicitly mentioned as a prohibited ground of discrimination, it could be included in “other grounds” as the list remains open-ended. Yet, there is a total absence of provisions with respect to the rights of same- sex couples. Finally, it should be noted that ar. 10 of the Constitution of Estonia introduces the “spirit of the constitution” clause that prescribes that the wording of the basic rights catalogue shall not preclude rights, freedoms and duties that arise from the spirit of the Constitution or are in accordance therewith and conform to the principles of human dignity and of a state based on social justice, democracy and the rule of law. Regarding the national institutions that handle human rights’ issues, in Estonia there are several independent public bodies in the area of human rights protection; the Estonian Institute for Human Rights, the Chancellor of Justice, the Gender Equality and Equal Treatment Commissioner and the Estonian Data Protection Inspectorate. The Estonian Institute for Human Rights that was established on the 10th of December 1992 is the first and oldest organization that deals systematically with the protection of human rights.152 Furthermore, the Chancellor of Justice is an independent official with a staff of thirty members that performs the role of human rights ombudsman. In particular, the Chancellor of Justice examines legislation for compliance with the Constitution and handles accusations of discrimination based on gender, race, nationality, colour, language, religion, social status, age, disability and sexual orientation.153 As regards the Gender Equality and Equal Treatment Commissioner, it was created after the entry into force of the Gender Equality Act (GEA), a legislation that covers all aspects of social life, including workplace, aiming to reduce gender-based discrimination.154 The Gender Equality and Equal Treatment Commissioner tasks include monitoring compliance with the requirements of the Gender Equality Act (GEA), receive complaints and advise on cases of discrimination. On an international level, Latvia has signed and ratified a number of human rights treaties. Indicatively, we mention the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Racial Discrimination and the Convention of the Rights of Children.155

2.7.1.3

Protection of human rights before the Supreme Court (Constitutional Review Chamber)

Despite the fact that the Estonian legislation does not provide for the establishment of a Constitutional Court, the Supreme Court fulfills in certain cases the role of a Constitutional Court. Particularly, the Supreme Court adjudicates constitutional review cases either at the sessions of the Constitutional Review Chamber or sitting en banc (session where the entire

152http://www.eihr.ee/en/895/

Bureau of democracy, human rights and Labor, 2010 Human Rights Report: Estonia, http://www.state.gov/j/drl/rls/hrrpt/2010/eur/154422.htm 154https://ec.europa.eu/europeaid/gender-equality-and-womens-rights-empowerment-estonia_en 155http://indicators.ohchr.org/ 153

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membership of the Supreme Court participates).156 According to the Constitutional Review Court Procedure Act, the Constitutional Review Chamber and the Supreme Court en banc adjudicates, inter alia, on the compliance of a legislative act, refusal to issue thereof or an international agreement with the Constitution of Estonia. Requests for Constitutional Review can be initiated by the Chancellor of Justice, the President of the Republic of Estonia, any Local Government Council or an inferior Court. Constitutional review cases can also be initiated by the chambers of the Supreme Court. The Supreme Court en banc or the Constitutional Review Chamber has the jurisdiction to declare legislative acts that have entered into force unconstitutional and as such, repeal them. Furthermore, legislative acts that have not yet entered into force and are declared unconstitutional by the Chamber shall not enter into force. Moreover, the aforementioned Chamber of the Supreme Court has the jurisdiction to advise Riigikogu on the conformity of any proposed European Union Law with the Constitution of Estonia, upon request of the Riigikogu.157 The Supreme Court’s judgements concerning constitutional review are binding to state bodies and to the lower courts. Estonian legislation does not allow individuals to claim their constitutional rights directly before the Supreme Court as a constitutional review Court. However, Supreme Court has acknowledged such a possibility on the basis of the Constitution in very limited cases, and particularly, in cases of total absence of efficient legal remedies to ensure the effective protection of fundamental rights.158 Applications that did not meet such requirements have been rejected.

2.7.2 Equal Rights 2.7.2.1

Anti-discrimination legislation

According to Article 12 of the Constitution of Estonia everyone is equal before the law. The same article establishes explicit prohibition of discrimination on grounds of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds.159 There is no specific mention about non-discrimination on the basis of sexual orientation, but this option could be included in “other grounds”, as the list seems to be openended. The constitutional principle of non-discrimination, worded in general terms, is repeated in some other laws, like the Penal Code, which declares that the most severe violation of the principle of equal treatment constitutes a crime. Today the structure of Estonian anti-discrimination law is shaped by three basic acts. The first one is the Law on Gender Equality which covers all spheres of public life and prohibits 156http://www.riigikohus.ee/?id=186 157Constitutional

Review Court Procedure Act, https://www.riigiteataja.ee/en/eli/530102013032/consolide

158http://www.venice.coe.int/WCCJ/Seoul/docs/Estonia_CC_reply_questionnaire_3WCCJ-E.pdf 159Article

12 Estonian Constitution

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discrimination on the basis of sex. It includes detailed definitions of direct and indirect discrimination, and harassment. Second is the Law on Equal Treatment. This ensures the protection of persons against discrimination on the grounds of ethnic origin, race, colour, religion or other beliefs, age, disability or sexual orientation. However, it is worth mentioning that this Law permits direct discrimination on the grounds of race and ethnicity in the circumstances other than genuine and determining occupational requirements or positive action measures (in order to ensure public order and security, prevent criminal offences, and protect health and the rights and freedoms of others). The Law has also introduced a new equality body: the Commissioner for Gender Equality and Equal Treatment. Last, there is the Chancellor of Justice which is an institution similar to an ombudsman. It is responsible for dealing with cases of discrimination on any grounds by public bodies and institutions. Since January 2004 the Chancellor of Justice’s Office became a quasi-judicial institution for disputes regarding discrimination by natural persons and legal persons in private law on the grounds of sex, race, ethnic origin, colour, language, origin, religious, political or other belief, property or social status, age, disability, sexual orientation or other grounds of discrimination provided for in the law.160 The two latter acts were specifically amended/adopted to transpose the requirements of the EU anti-discrimination Directives 2000/43 and 2000/78.

2.7.2.2

Family protection in Estonian legislation

There is no definition of “family” in Estonian Law. As far as the definition of marriage is concerned, until 2010, Family Law Act prescribed that marriage is contracted between a man and a woman. The Family Law Act that entered into force on the 1st on July 2010, states also that any marriage contracted between persons of the same sex is “null and void”. It is worth mentioning the opinion of the Chancellor of Justice as regards marriage, who stated that: “Marriage as a type of family has been afforded special protection by the state, especially as a basis for the society and for the continuation and growth of the nation (§ 27 (1) of the Constitution). This means that marriage is a sustainable unit, formed from a man and a woman, who can have common descendants and who are thus the guarantors for the continuation of the society. The fact that same sex persons do not have this possibility, is a difference, which can provide a reasonable explanation for different treatment of different sex and same sex couples ... Therefore my opinion is that the unequal treatment of homosexual persons within the meaning of contracting a marriage is justified161”.Moreover, Prime Minister Andrus Ansip stated that “I do not believe that Estonia, Latvia and Lithuania will soon accept same – sex marriage in the eyes of the law”.162 Consequently, only opposite – sex marriage is recognized under Estonian legislation.

160 Reports of measures to combat discrimination, Country Report 2013, http://www.nondiscrimination.net/countries/estonia 161Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, http://fra.europa.eu/sites/default/files/fra_uploads/1351-LGBT-2010_thematic-study_EE.pdf , p.13-14 162Estonia and homosexuality: Between (little) tolerance and Inclusion, http://www.lithuaniatribune.com/2484/estonia-and-homosexuality-between-little-tolerance-and-inclusion20102484/

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It should be mentioned that in Estonia, a remarkable number of couples do not officially register their cohabitation through marriage. Respectively, a high number of children are born in families where parents are not married.163 As far as the marital age of the population is concerned, according to statistical information in 2010, the average marital for men was 30.1 years and for women 27.6 years.164

2.7.2.3

Recognition of same-sex relationships

Estonia became the first country of the former Soviet Republic that legally recognized same – sex unions.165 In particular, on the 9th of November 2014, the Parliament adopted a new law, the Cohabitation Act, that establishes civil unions for Estonian couples regardless of gender. The Cohabitation Act grants taxation, property, inheritance and next-of-kin rights to couples regardless of gender and will enter into force on the 1stJanuary of 2016. As for the adoption of children, the Cohabitation Act, despite the fact that it does not grant adoption rights to the couple, it prescribes that one partner can adopt the other partner’s child.166 The first essential steps towards the legal recognition of same – sex couples were made on the 15th of May 2011, when the Chancellor of Justice, Indrek Teder, declared that the absence of recognition of same – sex couples is contrary to the Constitution of Estonia and requested that the Ministry of Justice introduce legislation to give same – sex partnerships a legal foundation.167 The bill was drafted in August 2012 and was under consultation until the 1st of October 2012. The bill was supported by three political parties in Parliament. In particular, the Reform Party and the Social Democratic Party supported the introduction of a neutral gender partnership law, while the Centre Party supported its discussion. Social’s Democrats’ supported vividly the bill mentioning that “Long – term cohabitation between people of same – sex is an area protected by fundamental family law. As a result of this, a situation where such cohabitation is not legally regulated is in conflict with the Constitution”168. On the contrary, the conservative IRL political party was against the bill. In March 2014, a parliamentary group starting working on the bill that would allow cohabitation to be officially registered by both opposite – sex and same – sex couples.169 The bill was submitted to the parliament on the 17th of April 2014. The IRL national conservative party attempted to send the gender- neutral Cohabitation Act to a referendum, however, parliament voted against

163http://www.estonica.org/en/Society/Population/Family_and_birth_of_children/ 164http://estonia.eu/about-estonia/country/population-statistics.html 165Estonia:

first country of the former USSR to legally recognize same-sex families, http://www.ilgaeurope.org/resources/news/latest-news/estonia-first-country-former-ussr-legally-recongise-same-sex-families 166Estonia First ex-Soviet State to legalise gay marriage, http://www.bbc.com/news/world-europe-29559012 167Justice Chancellor calls for same – sex partnership law, http://news.err.ee/v/politics/fb95bc86-cd40-4d9f-b3418d842e8d014a 168Social Dems, Reform Party reach common ground on civil partnerships, http://news.err.ee/v/politics/58735eb6b36d-4190-b36c-ae1020dac67f 169Parliamentary Group working to codify cohabitation,http://news.err.ee/v/society/d698cf47-bb3e-45b7-83f505c6f40b521e

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its motion.170 The bill’s lead author, Valdo Randpere, while rejecting the suggestion of the IRL party, stated that politicians had to lead opinion instead of following it.171 On the 9th of October 2014, the final vote that took place and the bill passed by a narrow majority of 40 against 38 votes with 10 abstentions. Finally, the bill was signed by the President Toomas Hendrik, who has also vividly supported the bill172 stating that “The fundamental document of democratic Estonia – our Constitution – requires equal treatment of all people. Estonian society will not survive intolerance of its own people. There are too few of us to discriminate against anyone.”173

2.7.3 National policy regarding homosexuals and same-sex couples 2.7.3.1

Political discussion regarding second parent adoption or joint adoption

Despite the introduction of Cohabitation Act adoption rights are not granted for same-sex couples. The law states that only a couple which is married can adopt and, as aforementioned, the marriage is accepted only between a man and a woman. The Act allows, however, only registered cohabitating couples to adopt the children of their partners.174 Still, the Act remains silent about the right of registered cohabitating couples to adopt other children. Additionally, it will be possible after 2016 for couples where both partners are infertile to adopt non-biological children. Single gay or lesbian persons can adopt a child as individuals, but in practice this could probably be possible only if the homosexuality of the person is not revealed. As far as the artificial insemination it is concerned, it is not forbidden for the lesbians, since generally single women are not excluded form assisted artificial insemination. However, again, it seems to be better for the lesbians not to expose their sexual orientation.175 The adoption remains an open issue that is about to be on the top of political discussion after the Cohabitation Act will become operational.

2.7.3.2

Society’s awareness towards rights of homosexuals

Apart from the yearly LGBT Pride, LGBT issues and rights receive little political or public attention in Estonia. A majority of Estonia citizens do not approve giving same-sex couples the right to marry or adopt children. 170Cohabitation

bill heads to final vote, http://news.err.ee/v/politics/29171d86-b6b6-4625-8e5e-3938654ac411

171http://www.ilga-europe.org/sites/default/files/estonia_-_annual_review_2015.pdf 172https://euobserver.com/lgbti/125988 173http://www.ilga-europe.org/sites/default/files/estonia_-_annual_review_2015.pdf 174Estonia:

Family Relations Extended Beyond Marriage, http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205404169_text 175Equality for Lesbians and Gay Men, http://www.ilgaeurope.org/sites/default/files/Attachments/2001_equality_in_accession_process.pdf

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Surveys show considerable negative attitudes toward homosexuals. Forty-one per cent of Estonians stated that they would not like to work with a homosexual, for example. Events such as Gay Pride have been problematic in recent years and instances of hate speech toward LGBT persons have been identified.176 Whereas the equal rights of LGBT people are fairly secure, the prevalence of hate-motivated harassment is slightly higher than the EU average. The gap between public perception and the realities of the LGBT life are highlighted by the differences in answers given by LGBT people and non-LGBT respondents regarding discrimination levels. According to the Eurobarometer 2012 survey, only 32 percent of Estonians perceive discrimination on the ground of sexual orientation to be very of fairly widespread. However, more than twice as many, namely 72% of all LGBT respondents from Estonia said that sexuality and gender identity based discrimination is very of fairly widespread.177 Gay Pride parades have been held in Estonia from 2004 to 2007. Parades brought up many contradictory emotions and mostly negative emotions within society – generally people preferred not to see and talk about the LGBT issues in public.

2.7.3.3

National Non-Governmental Organisations working on homosexual rights

Today, the LGBT movement in Estonia is rather loosely structured, but has considerable strengthened over the few last years. Various clusters of activism can be distinguished. Estonian Gay Youth (EGN) was established in 2008 in order to connect the Estonian LGBTQ community and to stand for an open and tolerant society where everyone can lead a safe daily life regardless of their sexual orientation or gender identity. This organisation can currently be considered the most prominent NGO. In 2012 they changed their name to the Estonian LGBT Association. In 2011 the OMA Centre was established as an information centre for LGBT people. The OMA Centre is project run by the LGBT association and is funded by the Open Estonian Foundation and the Council of Gambling Tax. The centre is open for different activities organized by activists and has become the most important venue for the LGBT community. There are other NGOs that could be related to the movement and that work with gay-related issues. SEKU is led by a lawyer and focuses on legal issues. There are also smaller, specialized NGOs, such as gay Christians and Gendy (an NGO for Estonian transgender people). A specific cluster in the movement is related to political art dealing with the topic, which is becoming rather visible and powerful in Estonia. Gay activists retain strong co-operation with the Estonian                                                                                                                       176The social situation concerning homophobia and discrimination on grounds of sexual orientation in Estonia, March 2009, http://fra.europa.eu/sites/default/files/fra_uploads/384-FRA-hdgso-part2-NR_EE.pdf, p.3 177http://news.err.ee/v/society/3e23941a-eceb-4b51-a72e-a6ddd68d1c5c

 

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Human Rights Centre which is an independent public interest foundation dedicated to the advancement of the protection of human rights in Estonia and abroad.178 In 2009, the Department of the Gender Equality of the Ministry of Social Affairs has opted for a wider notion of gender equality issues and since then participates actively in the issues of sexual minorities. The Department consulted with different LGBT organisations and the representative of the Department delivered a presentation at the Gay pride Baltic in Riga. The Department worked on increasing competence in the field and tried to enhance the cooperation with the relevant NGOs, which were previously ignored by the State.179

2.7.3.4

Social and political reasons for the legal recognition of same-sex couples

While Estonian society was rather hesitant towards rights of same – sex couples, politicians demonstrated courage and leadership when adopting the Cohabitation Act.180 The initiative for the adoption of a partnership law that would grant adequate protection of the rights of de facto cohabitation partners derived from the Chancellor of Justice (Ombudsman) in 2011 that supported that the absence of legal recognition of same – sex couples was contrary to the Constitution of Estonia. A few years ago, in June 2009, a poll conducted demonstrated that 32% of Estonian believed that same – sex couples should have the same legal rights as opposite – sex couples. However, only 6% among older people stand in favour of equal rights of same – sex couples.181 Moreover, it should be noted that the majority of Estonian society, and in particular two-thirds of Estonians according to a poll conducted in 2014,182 was against the Cohabitation Law that was adopted in October 2014. Protests were held by all religious communities. It is worth mentioning that a catholic lawyer Varoo Vooglaid collected 45.000 signatures against the bill, which is a significant number in a country with a total population of around 1.300.000 people. Consequently, the adoption of the Cohabitation Act is mostly thanks to a political decision made by the ruling coalition rather than society’s support to same – sex couples rights. In Estonia politicians determined the way of social progress against the hesitance of public opinion.183

178http://www.fp7-

myplace.eu/documents/D7_1/Cluster%204%20Gender%20and%20Minority%20Rights%20movemnts/MYPLAC E_7.1REPORT_TU_LGBT%20Movement%20%28Estonia%29.pdf 179http://fra.europa.eu/sites/default/files/fra_uploads/1351-LG,BT-2010_thematic-study_EE.pdf 180http://www.ilga-europe.org/sites/default/files/estonia_-_annual_review_2015.pdf 181http://www.uudised.err.ee/index.php?06166967 182Estonia first ex-Soviet state to legalize gay marriage, http://www.bbc.com/news/world-europe-29559012 183Tomasz Otocki, Estonia, How much equality?http://www.neweasterneurope.eu/interviews/1367-estonia-howmuch-equality

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2.7.4 Summary In conclusion, according to Estonian legislation same-sex couples do not have the right to marry or adopt children jointly. However, efforts to diminish the existing inequality led to the Cohabitation Act, which is about to bring a balance somehow. When it will be put into force, 1st of January 2016, same-sex unions will be finally recognized. Taxation, property, inheritance and next-of-kin rights to couples regardless of gender will be granted, and even if there is still not a big progress with the right to adoption, the Cohabitation Act sets the path for further changes to be introduced.

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2.8

Finland Written by Anastasios Charalampous and Konstantina Meletiadou184  

2.8.1

General principles of jurisdiction

The geographical position of Finland has been crucial for the formation of the Finnish state. The early Finnish law was vastly influenced by the Swedish legal system and the continental legal tradition in general. It can be mentioned, for example, that until the early 20th century, despite the fact that Finland was autonomous, the official language, which was used in legislation and administration, was the Swedish. Soon after the declaration of its independence in 1917, Finland also established its Constitution, which consisted of a number of different acts with the same status. Those acts had been modified and adjusted to the western economic conditions and the EU perspective of the country, so that the need for a single act led to a new Constitution which came into force in 2000. The Constitution occupies the highest position in the hierarchy and contains the main principles of the Finnish state. The democratic regime is based on the Parliament which has the legislative power, while the governmental powers are exercised by the President of the Republic and the Government, the members of which shall have the confidence of the Parliament (Section 3, Chapter 1 of the Constitution). Since there is only a single central government, it shares along with lower administrative bodies the responsibility for the adoption and execution of laws. Following the legal tradition that exists in most European countries, the Finnish Constitution sets provisions not only regarding the regime and the organisation of the state but also for the protection of fundamental rights (civil, political, social and collective rights). This can be clearly viewed in the target of Section 1, Chapter 1 of the Constitution, according to which: "The constitution shall guarantee the inviolability of human dignity and the freedom and rights of the individual and promote justice in society. Finland participates in international co-operation for the protection of peace and human rights and for the development of society". Chapter 2 (Sections 6-23) is completely devoted to basic rights and liberties, thus contains many articles that secure an extended variety of rights and set the conditions under which these rights and liberties can be restricted. Of course, the Charter of Fundamental Rights of the EU, as well as the European Convention on Human Rights are legally binding and posses their special position in the hierarchy of the legal order. Among the rights that the Constitution of Finland guarantees, those connected with our study research are the equality and the right to privacy which can also apply to same-sex couples (and Anastasios  Charalampous  is  an  undergraduate  student  at  the  Aristotle  University  of  Thessaloniki, Konstantina  Meletiadou  is  an  undergraduate  student  at  the  Aristotle  University  of  Thessaloniki.

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LGBT in general) due to the absence of other special provisions regarding solely the rights of homosexuals. Equality and non-discrimination are key factors for the protection and strengthening of the rights of sexual and gender minorities in every field of public policy and action. Both in public and private sector discrimination on the grounds of sexual orientation, gender identity and gender expression is illegal. In addition, the goals of Finland’s international human rights policy – the eradication of discrimination and increased openness and inclusion – are mainstreamed into all foreign policy activities. According to the Development Policy Programme (2012) : “Finland pursues a human rightsbased approach to development”. Its aim is that everyone, including the poorest people, knows their rights and is able to act to enforce them. It is equally important that the authorities know their human rights obligations and are capable of implementing them.” In addition, Section 22 of the Constitution entitled as "Protection of basic rights and liberties" provides that: "The public authorities shall guarantee the observance of basic rights and liberties and human rights". For example the recent reform of the Gender Equality and Non-Discrimination Act 1325/2004 (in 2015) aims to prevent discrimination based on gender identity and expression of gender identity. Moreover, the two former equality bodies, the Gender Equality Board (concerned with gender equality) and the National Discrimination Tribunal (concerned with ethnic discrimination), were united and given a broader mandate , so that individuals who refer to such bodies and institutions can claim their rights more effectively. Under Section 21 of the Constitution "Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice". Finland has a dual court system. There are the general courts, which are in charge of civil and criminal law (59 District Courts, 6 Courts of Appeal and finally the Supreme Court) and the administrative courts, which review the actions of public authorities on the basis of appeals filed by private individuals and corporations (8 regional Administrative Courts and the Supreme Administrative Court) . Even though a Constitutional Court lacks, people are not deprived of the protection of their rights. The courts and other authorities are under an obligation to interpret legislation in such a way as to adhere to the Constitution and to respect human rights. According to the Constitution (Section 106), the courts should give preference to the Constitution when they decide a case if the application of an act would be in manifest conflict with the Constitution . The existence of the two Supreme Courts as the latest instance of jurisdiction further promotes sufficient legal protection.

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2.8.2 Equal Rights Homosexual activity in Finland has been decriminalised since 1971. Till then homosexuals were imprisoned by a maximum of two years as a punishment. Also it was not until 1981 that homosexuality was not treated as an illness. The age of consent between sexual acts performed by heterosexuals and those performed by homosexuals was equalised to 16 in 1999. Discrimination based on sexual orientation has been criminalised since 1995 and on gender identity or expression since 2005. The state adopted Non-Discrimination Act in 2004 (21/2004) which was amended by several acts, including No. 84/2009. More specifically Section 6 indicated that “nobody may be discriminated against on the basis of age, ethnic or national origin, nationality, language, religion, belief, opinion, health, disability, sexual orientation or other personal characteristics”. The prohibition of direct or indirect discrimination based on gender and applied also to employment and housing is covered by the provisions of the Act on Equality between Women and Men (609/1986). What is more, a lengthy legislative reform process reached its conclusion. Wide ranging changes to the anti-discrimination law were agreed with 164 MPs voting in favour (21 against) and was come into force in January 2015. The Gender Equality Act, and the mandate of the Gender Equality Ombudsman, now explicitly includes gender identity, gender expression and sex characteristics. A new Non-Discrimination Ombudsman was created, whose mandate will cover sexual orientation, age, disability, religion or belief, nationality, language, health condition, family relations, opinion or other personal characteristics. As for example of the anti-discrimination law application, Minister of Health and Social Services Susanna Huovinen requested fertility clinics to examine their procedures in order to ensure they did not discriminate on the basis of sexual orientation or gender identity. When it comes to military service, Finland is considered as a country which legally allows it to Openly Gay People. In 2001 the Act on Registered Partnerships is passed in the Parliament. It follows the same regulations as the Marriage Act (for different-sex couples). However, the rights that same-sex couples enjoy through Registered Partnerships excluded the right to take the spouse's name and the right of adoption. The law comes into force on March 1 2002, and the first couples are registered on March 8. Moreover, in 2007 the lesbian couples and lesbian individuals were provided with the right in vitro fertilization (IVF) through the adoption of the Act on Assisted Fertility Treatments. Later on, in May 2009, the Act on Registered Partnerships was revised and stepchild adoption (= a person in a same-sex registered partnership is able to adopt his or her partner's biological children) became possible for all same-sex couples. In the case of separation, the non-biological parent would also qualify for visitation rights. However the right of adoption is not yet exercised by same-sex couples in Finland but it is to come into effect in 2017. Surrogacy also remains illegal. Multilateral Legal Research Group 89


During the 2000s public support for a marriage legislation allowing all the same rights for samesex couples as opposite-sex couples has gradually grown. But despite high public support for equal marriage rights, most conservative politicians oppose the equal marriage measures. Based on support by five of the eight parties in the Parliament elected in 2007, it was considered possible that same-sex marriage would be legalised after the 2011 parliamentary elections. As a result of the afore-mentioned elections, the Christian Democratic inclusion in the new government did not include a bill legalising same-sex marriage. However, according to the Left Alliance, it was agreed upon during the negotiations on government formation that, if proposed by an individual MP, such bill would be endorsed by all the other parties in the government coalition (the National Coalition, Social Democrats, Left Alliance, Green League and Swedish People's Party). In March 2012, a bill to make the language of the Marriage Act gender-neutral- effectively, allowing gay marriage- was proposed to the Parliament, signed by 76 out of the 199 voting MPs during 2012. In February 2013, the bill was voted down by the Parliament's Legal Affairs Committee. However, the bill was submitted again in December 2013 to the Parliament as a citizens’ initiative in favour of marriage equality, ‘I do 2013’ (‘Tahdon 2013’) had received 167,000 signatures, and it was approved by the Parliament in late 2014. In June, the Committee on Legal Affairs refused to back the proposal by 10 votes against it, and 6 in favour. In November, the plenary overturned the committee’s decision, and voted in favour of the proposal by 105 votes in favour and 92 against. Activists gathered outside and reacted. MPs from half the National Coalition Party (the Christian Democrats of Finland, The Finns Party and the Centre Party opposed the proposal. The other half of the National Coalition Party, the Left Alliance, the Social Democratic Party and the Swedish Party supported it. At the end of the year, the president had not yet signed the bill into law, so the exact date when marriage equality will enter in force was still unclear. However if we take into consideration the annual polls which indicate the Finish public opinion, there is a wide support for marriage equality throughout the years. A poll of 1,010 individuals commissioned by Tahdon 2013 in March 2015 suggested that 65% of respondents nationwide supported marriage equality, while 27% opposed it, and 8% were unsure. To conclude with, gender-neutral marriage should come into force in Finland on March 1, 2017 because a bill for legalization which came from the citizen’s initiative Association for Real Marriage that collected 50.000 signatures necessary for obliging Parliament to initiate a new debate on the law on marriage equality, was approved by the parliament on 12 December 2014 and President Sauli Niinistö signed the law to that effect on 20 February 2015. In order to implement the law, follow-up changes in other acts were required. The legislative measure to make most of these changes was approved by the parliament on 17 February 2016 and signed by President on 8 April 2016. Meanwhile, when it comes to Church in Finland, the Archbishop of the Evangelical Lutheran Church in Finland, Kari Mäkinen, apologised for the Church’s negative approach towards Legal Status of Same-Sex Couples in the EU 90


LGBTIQ people. He said that “cruelty was cruelty”, even if it had become more subtle in recent times. A survey of priests in the Finnish Evangelical Lutheran Church found that 44% of respondents supported marriage equality, while 41% opposed it. In December 2013, the Finnish Medicines Agency changed its long-contested rules on blood donations and repealed the permanent ban for men who have had sex with men (MSM). Finally, same-sex couples in Finland enjoy freedoms and rights such as but not limited to freedom of movement, asylum and subsidiary protection, family reunification and freedom of assembly.

2.8.2.1

Freedom of movement

The provisions regarding freedom of movement of EU citizens and members of their families are laid down in the Finnish Aliens Act. These provisions apply equally to everyone irrespective of their sexual orientation. By virtue of the Aliens Act and the Act on Registered Partnerships persons who have contracted a registered partnership have the same rights as persons who are married, and same-sex couples living in the same household have the same rights as different-sex couples living in the same household. As a rule, family members of EU citizens (irrespective of whether they themselves are EU citizens) have the same right of residence in Finland as the EU citizen concerned.

2.8.2.2

Asylum and subsidiary protection

Under the Aliens Act non-citizens may be granted asylum if they reside outside their home country owing to a well-founded fear of being persecuted for reasons of “membership in a particular social group”. In light of both preparatory works to the Aliens Act and case law, persecution on the grounds of sexual orientation is to be considered persecution for reasons of membership in a particular social group within the meaning of the said law. Family members, including LGBT partners, of persons who have been granted asylum or subsidiary protection are, upon application, also issued a residence permit.

2.8.2.3

Family reunification

A family member of a third country national residing in Finland may be issued a residence permit on the basis of family ties. The material provisions regarding family reunification apply equally to married spouses and individuals in a registered partnership, and to different-sex couples living in a marriage-like relationship and same-sex couples living in such a relationship. Under the Aliens Act, when a non-national is issued a residence permit, his/her family members are issued a similar permit for the same period of time.

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2.8.2.4 Freedom of Assembly The Constitution and the Assembly Act provide strong protection for the right to exercise the freedom of assembly. Everyone has the right to arrange demonstrations and other public meetings without a permit, as well as the right to participate in them. These rights apply to “peaceful public meetings”, which is interpreted to mean that the purpose of the meeting must not be to break the law for instance by means of inciting hatred, as defined in the Penal Code, against a population group (such as LGBT people). The police is specifically required under domestic law to protect public meetings from illegal third-party interference.

2.8.3 National policy regarding homosexuals and same-sex couples Even though there is an important progress towards the recognition of the rights of same-sex couples during the last 15 years, the matter of adoption is still a ground of inequality between registered partnership and marriage, until gender neutral marriage will come into force. In 2010, The Finnish Ministry of Justice prepared a report analysing the technical implications of the possible changes after the legalisation of gender-neutral marriage and the introduction of full adoption rights. Presently, the only differences between married couples and registered partners are that a registered partner cannot take his/her partner's family name directly according to the law, the pater est principle of the presumption of paternity does not apply and registered partners cannot adopt jointly. Despite the fact that the other Scandinavian countries grant adoption rights (either stepchild or both stepchild and joint adoption) to homosexual partners/spouses, Finland was not as much decisive as far as the parenthood issue is concerned. A certain passage of time between reforms is found necessary so that in the meantime, society gets an opportunity to accept each reform and to mature in time for the next one. It was not before 2009 when only internal stepchild adoption for same-sex couples became possible, while adoption of children who are orphaned or living in an institution remained impossible for homosexual couples. At that time, the Act of Registered Partnership was amended so that the non-biological parent in a rainbow family could become a legal guardian to the biological children of his/her partner . Moreover, homosexuals face difficulties in the access to medically assisted reproduction. Artificial insemination is a possibility for female couples, but male couples would have to find someone willing to carry their child, which could be difficult since using a surrogate mother is illegal in Finland . However, the partner of the birth-giving mother as a result of assisted fertilisation can only adopt the child in the form of the stepchild adoption in order to acquire joint legal parenthood. In addition, only in Finland besides adoption and assisted reproduction in order for a same couple to acquire joint legal parental status, by a decision of a competent authority, the child's social parent – normally the biological (and legal) parent’s spouse, cohabite or registered partner – can be granted the right to exercise parental responsibilities in relation to the child, together with the child's (social and legal) parent, without entailing any full parental status. 92 Legal Status of Same-Sex Couples in the EU


Due to the fact that there is an intense interest about the rights of homosexuals, Finnish society is already aware of the issue of legal recognition. The gender-neutral marriage proposal has created a great amount of public discussion during 2010-2011. Newspapers and television seem to have framed the issue in terms of two opposing sides: on one side are homosexuals and their advocate groups. On the other side are religious conservatives and conservative politicians. Moreover, the legislative initiatives that the other neighbour states and especially Denmark and Sweden have taken in this particular field have also affected the Finnish legislation. Openness is a prerequisite for successful human rights policy and the state calls for more effective empowerment of the civil society, while supports the operating conditions of NGO's and human rights defenders. For this reason there are many active NGOs whose pressure had been crucial towards the establishment of rights for LGBT. Amongst others, there should be special reference to Seta (Seksuaalinen tasavertaisuus "Sexual equality"), Trasek, Transgender Support Center (Transtukipiste), the national helpline Sinuiksi, Sexpo, et.al. Especially SETA had an important role in favour of the new law which opens marriage to same couples during the public debates and discussions prior to its vote. Organisations and peer groups organise a lot of actions and events with the pride parades being their highlight.

2.8.4 Overview of history/cases Until 1 March 2017, when gender neutral marriage will come into, same-sex couples will continue to be recognised only under the form of registered partnership. Registered partnership is the first step towards the recognition of LGBT peoples' right to private and family life and thus can act as protection for rulings against the State made by international Courts and Institutions. In that way, annual Reports of UN or the case-law of ECHR do not contain in general negative conclusions beside some critical remarks. However, the fact that the Finnish legislation discriminate same-sex couples in matters of marriage has led many individuals to refer to international Courts asking for the protection of their rights. Under the meaning of Articles 8 and 14 of the European Convention on Human Rights and Freedoms, the Court usually demands that member states do not exclude same-sex couples from "civil unions", which consists the minimum form or legal recognition. For this reason, in case "Hämäläinen v. Finland" the ECHR noted that Finland did not violate Article 8 by refusing to give applicant female identity number following sex change unless marriage was transformed into a civil partnership. In more details because of Finland’s prohibition on samesex marriage, Heli, 49 (who had already had to undergo a psychiatric assessment and sterilization as part of the Finland’s legal requirements for gender recognition), was not able to obtain legal recognition of her gender unless she converted her 18-year marriage into a civil partnership . However according to Jezerca Tigani, Deputy Director of Amnesty International’s Europe and Multilateral Legal Research Group 93


Central Asia Programme 'the Finnish legislation is disproportionate and discriminatory, since it is forcing Heli to choose between legal recognition of her gender identity and staying married with her partner, contradicting the previous case-law of the ECHR which recognises that an individual’s ability to obtain recognition of their gender identity is “one of the most basic essentials of self-determination” .

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2.9

France Written by Sabine Ribeiro Maia185

2.9.1 General principles of jurisdiction France has been ruled by absolute monarchs for hundreds of years. In 1789 however, the French people demanded change. The Declaration of the Rights of Man and of the Citizen, a document that was drawn up by General Lafayette, became a core statement of the values of the French Revolution186 and had a major impact on the development of liberty and democracy in Europe and worldwide.187 After the revolution, France became one of the earliest modern republics. However, that wasn’t for long, as Napoleon seized power in 1804 and established the First French Empire, a constitutional monarchy.188 After the collapse, France had a long history with different governments. The semi-presidential system we have nowadays, was determined by the Constitution of the Fifth Republic of 1958. The national government of France is divided into an executive, a legislative and a judicial branch, by its Constitution.189 The executive power is led by the President (Head of State) and the Prime Minister (Head of Government). The President is elected by a direct universal vote for a five-year term. He appoints the Prime Minister and other members of the government. The Prime Minister leads the administration, and determines national policy. The legislative power is held by Parliament, consisting of the National Assembly (Assemblée Nationale) and the Senate (Sénat). The National Assembly is elected by a direct universal suffrage, while the Senate is elected by an indirect universal suffrage by locally elected representatives. Both chambers must approve all the laws. The Parliament controls the action of the executive power through a formal process of opening investigations, has extensive powers to enact statutes, votes on the budget and may also contest the mandate of the government. The judicial system in France is based upon a civil law system, which evolved from the Napoleonic codes. It is divided into a judiciary body, combining civil and criminal courts, and an administrative body of various administrative courts, with both their own independent supreme court of appeal: the Court of Cassation (Cour de Cassation) for the judicial courts and the Council of State (Conseil d’Etat) for the administrative courts.190

185 Sabine Ribeiro Maia is a Postgraduatestudent (LLM International and European Law: European Union law) at the University of Amsterdam. 186 Fennema, M. (2001) “De moderne democratie, geschiedenis van een politieke theorie” Het Spinhuis, Amsterdam, p. 48-52 187 Lokin and Zwalve “Hoofdstukken uit de Europese Codificatiegeschiedenis” (2014) 4th edition, p. 229. 188 Ibid., p. 256 189 Constitutional Court of France: http://www.conseil-constitutionnel.fr/conseilconstitutionnel/english/constitution/constitution-of-4-october-1958.25742.html 190 The President of France: http://www.elysee.fr/la-presidence/les-institutions-de-la-cinquieme-republique/

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The Declaration of the Rights of Man and of the Citizen was not only a fundamental document in the French revolution, it is still of major importance. The document was written in 1789 as a statement against the absolute power of the sovereign. It rejected the laws and policies of the aristocratic regimes in France. The rights of man are held to be universal, which means that they are valid at all times in every place, pertaining to human nature itself.191 Article 1 of the Declaration states: “Men are born and remain free and equal in rights. Social distinctions can be founded only on the common good”.192 It further grants individuals the “natural, inalienable and sacred human rights” including “freedom, property, safety and the right to resist oppression.” The declaration inspired the 1948 United Nations Universal Declarations of Human Rights and is included in the preamble of the current French Constitution. The Constitution, formally called the Constitution of the Fifth Republic, was adopted on the 4th of October 1958.193 It has been amended eighteen times, most recently in 2008. Article 1 of the Constitution says that “France shall ensure the equality of all citizens before the law, without distinction of origin, race or religion”.194 Legislation, approved by Parliament, is subordinate to the Constitution. The Constitutional Council (Conseil Constitutionnel) reviews the constitutionality of legislation before it is enacted, that is, it checks to see whether it conforms to the Constitution. The Constitutional Council does not review the decisions of lower courts for constitutionality on appeal, but is instead addressed through petitions by the President of the Republic, the Prime Minister, the President of the National Assembly and the Senate, or by sixty members or senators.195 The Council of State or Court of Cassation may also refer a case to the Constitutional Council for review on the constitutionality of an existing legislative provision. On the first of March 2010, this new form of constitutional review came into force. Review of the compatibility of legislation with the Constitution can now be carried out ex post, so after the promulgation of legislation, when issues of constitutional compatibility are raised in the course of litigation. Before this amendment, only ex ante review was possible, thus before the promulgation of Acts of Parliament. Citizens are now able to challenge the constitutionality of legislation already in force.196 Article 55 of the Constitution entails that international treaties ratified by France prevail over Acts of Parliament.197 The term of office for the nine members of the Constitutional Court is nine years, non-renewable. Three members are appointed by the President, three by the President of the National Assembly and three by the President of the Senate.198 There is no

Lokin and Zwalve “Hoofdstukken uit de Europese Codificatiegeschiedenis” (2014) 4th edition, p. 229. Article 1 of the Declaration of the Rights of Man and of the citizen 193 The Constitution of France: http://www.conseil-constitutionnel.fr/conseilconstitutionnel/english/presentation/general-presentation/general-presentation.25739.html 194 Article 1 of the French Constitution 195 Constitutional Court of France: http://www.conseil-constitutionnel.fr/conseilconstitutionnel/english/presentation/who-may-apply-to-the-constitutional-council-/who-may-apply-to-theconstitutional-council.137219.html 196 M. Hunter-Henin ‘’Constitutional developments and human rights in France: one step forward, two steps back’’ (2011) International & Comparative Law Quarterly, vol. 60, p. 167-169 197 Article 55 of the French Constitution 198 Article 56 of the French Constitution 191 192

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appeal possible from the decisions of the Constitutional Council; the decisions are thus binding.199 The National Consultative Commission on Human Rights (Commission nationale des droits de l’homme, CNCDH) is a French governmental organization, which was created in 1947 to control the respect of human rights in the country. The organization can act as a counsellor for the government and propose laws. It can then monitor the application of governmental measures and laws.200 There is also a French Equal Opportunities and Anti-Discrimination Commission (Haute autorité de lutte contre les discriminations et pour l’egalité, HALDE), which is a French independent administrative authority, created in 2004. The Commission has the right to judge all discrimination that is prohibited by law or an international agreement to which France is a party.201

2.9.2 Equal rights 2.9.2.1

Individual protection of human rights

In the beginning of 2015, the Council of Europe found that France was becoming more intolerant towards minority groups, including gypsies, Muslims and Jews. Council Commissioner for Human Rights Nils Muiznieks found during his visit in September 2015 that “in recent years, there has been a huge increase in anti-Semitic, anti-Muslim and homophobic acts”.202 A Survey of 2014 shows that in France, a majority (79%) thinks that gender inequalities are widespread in their country. Notably, high proportions of respondents (20%), especially in France, said that the gender inequalities are “very widespread”.203 On the 18th of May 2013, the President of the Republic introduced a bill to open marriage and adoption rights to same-sex couples. Despite commitment by the government to reform abusive practices, Amnesty International states in their 2014/2015 Human Rights Report that “transgender people continued to be subjected to psychiatric diagnosis and unnecessary medical treatments such as surgery and sterilization in order to obtain legal recognition of their gender”.204 It took eight months of debates in Parliament and across the country, before the National Assembly adopted the new bill. This period of debates was tumultuous. There were large demonstrations against the bill, as well as an offensive discourse against sexual minorities and their families that capitalized on stereotypes associating homosexuality with bestiality or                                                                                                                       Article 61 of the French Constitution The Commission nationale des droits de l’homme: http://www.cncdh.fr 201 HALDE: http://www.halde.fr/-Deliberations-.html 202 RT.com,‘’Jews, Muslims face increasing French discrimination, racism – Council of Europe’’ published on 20th Feb 2015: http://on.rt.com/lph993 203Eurobarometer 2014, Gender Equality: http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/SPECI AL/surveyKy/2048 204Amnesty International Report 2014/2015: http://www.amnestyusa.org/pdfs/AIR15_English.PDF 199 200

 

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pedophilia. There was also an increase in aggression against gay and lesbian individuals in France.205 French people were much more sensitive to opening up child adoption for same-sex couples than to opening up marriage. The arguments of opponents of the new bill mainly concerned the risks faced by children in their psychological development.206 Public opinions surveys in France have shown that since the 1990’s there is a positive opinion on allowing marriage more so than on adoption. A year and a half after the amendment, 68% of people were in favour of marriage, but only 53% were in favour of adoption by same-sex couples.207 Furthermore, traditionalist Catholic movements were much more mobilized in France than in other countries where marriage and adoption also has been legalized. The Catholic movements expanded their audience on this legislation in a political context and therefore, more diffuse and wider sources of discontent against the political establishment were reached.208

2.9.2.2

Recognition of relationships/family protection

The term ‘family’ is not defined in the Constitution of France. French family law is codified in the Civil Code. Therein the governing and breakdown of marriage is established.209 There is a section in de Civil Code on the respective rights and duties of the spouses,210 where it is written down that “spouses owe each other respect, fidelity, support and assistance.”211 Furthermore, “spouses are responsible together for the material and moral guidance of the family.”212 In France, the minimum age to marry is 18 years old, both for women and men.213 According to a survey conducted in 2014, the mean age of marriage for men is 32.3 years and for women 30.5 years.214

2.9.2.3

Recognition of homosexual relationships

Both French legislature and courts gradually gave benefits to unmarried cohabiting couples. However, the Courts were hesitant in providing equality to same-sex couples. They only provided more rights for heterosexual cohabitants. In 1990 the first registered partnership was introduced, which meant that French same-sex couples finally could have their relationship legally recognised. The bill was redrafted and renamed in 1998, now including all the prior                                                                                                                       SOS Homophobie, Annual Report 2014: http://www.sos-homophobie.org/rapportannuel O. Vecho, P.Poteat & B. Schneider (2015) “Adolescents' attitudes toward same-sex marriage and adoption in France” Journal of GLBT Family Studies p. 3 207 Institut Français d'Opinion Publique: http://www.ifop.com/media/poll/2839-1-study_file.pdf 208 O. Vecho, P.Poteat & B. Schneider (2015) ‘’Adolescents' attitudes toward same-sex marriage and adoption in France’’ Journal of GLBT Family Studies p. 3 209 Articles 143-227 of the French Civil Code are on the Governing of marriage and articles 229-308 of the French Civil Code are on the breakdown of marriage. 210 Articles 212-226 of the French Civil Code: “Of the Respective Rights and Duties of the Spouses” 211 Article 212 of the French Civil Code 212 Article 13 of the French Civil Code 213 Article 144 of the French Civil Code 214 Institut National d’etitudes Démografiques: https://www.ined.fr/en/everything_about_population/data/france/marriages-divorces-pacs/marriage-nuptiality/ 205 206

 

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French bills on registered partnership and called Pacte Civil de Solidarité (PaCS). The bill was heavily opposed by right-wing political parties and Catholic, Protestant, Muslim and Jewish communities, because it would deny the importance of marriage in French society. A second reading of the bill was later passed by the National Assembly without consent of the Senate. The bill was heavily debated and extremely controversial. PaCs are defined as “a contract entered into by two natural persons of age, of different sexes or the same sex, to organise their common life.”215 In order to pass the legislation, and with the knowledge that it would get a lot of opposition and homophobic reactions, supporters of the bill emphasized that it was a model of regulation for any unmarried couple, and not just for same-sex couples.216 In the National Assembly in 2011, deputies of the majority party Union for a Popular Movement voted mostly against the measure, while deputes of the Socialist Party voted in favour. Socialist Party candidate Francois Hollande declared his support for same-sex marriage and adoption for same-sex couples during his campaign for the 2012 presidential election. The Socialist Party won an absolute majority in the French Assembly and a draft bill was submitted to parliament in November 2012.217 There were introduced a lot of amendments, however, with the consent of the Constitutional Council on 17 may 2013, the bill was declared constitutional and officially published on 18 May 2013.218 French law provides for adoption available to individuals. Anyone above 28 years old can adopt, whether he or she is married or not, living alone or cohabiting. Cohabiting couples or partners who have entered a PaCs, cannot adopt a child together, they can only be adopted by one of them, whether they are heterosexual or homosexual. If people want to adopt a child together, they must be married.219 The Green MP’s drafted a bill that would allow medically assisted procreation for lesbian couples, which still needs to be examined. After same-sex marriage and second-parent adoption became legal in France, there was a possibility of adopting the child of one spouse, by the other spouse in a same-sex relationship. However, the law relating to medically assisted procreation has not been amended in line with the recent legal changes and therefore, the law grants this right only to heterosexual couples. Because medically assisted procreation is thus illegal for same-sex couples in France, these couples were forced to go abroad to use medically assisted procreation. Some regional courts questioned the legality of these adoptions, but in September the Court of Cassation ruled that they were lawful. Nevertheless, the issue of medially assisted procreation is still one of the most controversial areas in family law.220                                                                                                                       215Article

515-1 of the French Civil Code Y. Merin (2002)‘’Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States’’ University of Chicago Press, p. 136-141 217 CNN International: http://edition.cnn.com/2013/04/23/world/europe/france-same-sex-vote 218 France 24 News: http://www.france24.com/en/20130517-france-constitutional-court-council-approves-gaymarriage-bill 219Adoption policy in France: http://www.adoptionpolicy.org/pdf/eu-france.pdf 220 ILGA Report 2015: http://www.ilga-europe.org/sites/default/files/france_-_annual_review_2015.pdf 216

 

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2.9.3 National policy French political tradition had had an effect on the history of gay and lesbian movement in France. In the eighties and nineties, there were (limited) political opportunities for gays and lesbians to manifest themselves as a collective political identity. There was limited access to politics and therefore French gays and lesbians found it difficult to develop a collective political identity and rarely took collective political action. The political establishment refused to hear their appeal, particularly as long as other, traditional cleavages remained predominant.221With the PaCs bill in 1999, France became the first largest country in Europe, and nominally Roman Catholic one, to regulate same-sex partnerships. This was not achieved easily. Right-wing political parties and Catholic, Protestant, Muslim and Jewish Communities and a large part of the Senate heavily opposed the PaCs bill. No law has been debated in Parliament so much, since France revised the Constitution in 1958. It created heated debates between politicians and the general public and was extremely controversial. The Socialist Government sponsored the PaCS bill and it reached the National Assembly. The road towards the legalization of same-sex marriage, which became available in May 2013, was again not without opposition. UMP (Union for a Popular Movement) and FN (National Front) politicians continued demanding a repeal of the law, while a poll of UMP supporters showed that 56% was against a repeal. In November, two of the three candidates to the presidency of UMP, including former President Nicolas Sarkozy, pledged they would repeal the law if UMP won the race in 2017. Despite the opposition and criticism about reforms with regard to same-sex couples, NGO’s try to shed light on the pro-equality side. La Manif Pour Tous, which had led opposition to equal marriage in 2013, organised two demonstrations to protest against marriage and adoption rights, as well as access to medially assisted reproduction and surrogacy for same-sex couples. There were 80.000 and 70.000 people who demonstrated respectively. On the other hand, over 243.000 signatures were gathered by NGO All Out’s pro-equality petition. Also, in October 2015, three PS MP’S published a draft bill in order to facilitate legal gender recognition. The draft provides for a request for gender recognition to the state prosecutor, who would respond in three months. Trans NGOs objected to the draft with the argument that individuals shouldn’t have to prove their identity to a tribunal. The bill wasn’t tabled by the end of the year. Furthermore, in April 2015, Christine Boutin, President of the Christian Democratic Party in France, said in an interview that homosexuality was “an abomination”. NGO Inter-LGBT sued her for incitation to hatred. The police received over 10,000 individual complaints. In Court, Boutin was condemned to a fine of 5000 euros and 2000 euros for legal damages.222 She is appealing this decision.223                                                                                                                       221 O. Fillieule & J.W. Duyvendak Gay and Lesbian Activism in France: http://www.jwduyvendak.nl/wpcontent/uploads/2015/07/gay-and-lesbian-activism-in-france.pdf 222 Ibid. 223 Homosexualité : condamnée pour incitation à la haine, Christine Boutin fait appel (2015, December 18). Le Parisien. http://www.leparisien.fr

 

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France supports efforts of human rights defenders and NGOs. France, the Netherlands and Norway and four NGO’s, namely IDAHO, ILGA, Amnesty International and FIDH, worked together in 2010 to set up an International ‘’Human Rights, Sexual Orientation and Gender Identity" Support Fund. This fund, operated by France Expertise Internationale, on behalf of the French government, tries to bring together the many agencies involved in combating homophobia and trans phobia (private and public). It also supports local initiatives in countries where discrimination based on sexual orientation and gender identity is considered too sensitive for open public debate. Also, on October 31 2012, France’s Council of Ministers approved a government program to combat violence and discrimination on the ground of sexual orientation or gender identity.224 Still, the government fell short of its promise to extend the topics of a pilot program for sexuality and diversity education in 2014-2015. The extended program would, besides sexism and genderbased stereotypes, focus on sexual orientation and gender identity.225 The largest non-governmental organisations working on the topic of homosexual rights in France is SOS Homophobie, which is an LGBT (Lesbian/Gay/Bisexual/Transgender) support organization which was established in 1994. SOS Homophobie organises national support programs. They have an anonymous hotline, have testimonies on their website and offer support via postal mail. In 2013, there were 3517 testimonies, whereas this was only 1977 in 2012. The large increase is due to the heated debates and demonstrations regarding same-sex marriage in France, where a lot of LGBT people faced aggression. The more aggression towards LGBT people, the more they felt the need to share this with SOS Homophobie, says the organization. It further publishes annual reports on LGBT issues and the organization intervenes in schools, which have problems with regard to homophobia. The organization supports victims of homophobia and organises events to prevent homophobia. Moreover, the aim of the organization is to achieve equality for people despite sexual orientation. SOS Homophobie takes part in several national and international events to raise public awareness of the rights of LGBT people such as The International Day against Homophobia, The Gay Pride in Paris and The Day of the Fight against AIDS. SOS Homophobia cooperates internationally with other LGBT organizations to raise awareness and to improve equality in the world.226 Arcadie was an important homophile organization in France, which was established in the 1950s with its leader from start to finish, André Baudry. In 1954 the Arcadie journal was established and some authors consider this the starting point of the gay movement. The strategy of the organization was the improvement of the homosexual condition and homophiles were advised

                                                                                                                      Foreign Policy France on LGBT rights: http://www.diplomatie.gouv.fr/en/french-foreign-policy/humanrights/sexual-orientation-and-gender 225 ILGA Report 2015: http://www.ilga-europe.org/sites/default/files/france_-_annual_review_2015.pdf 226 SOS Homophobie: http://www.sos-homophobie.org 224

 

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to behave as normally as possible. Until the mid-1970s, the organization played a dominant role in society.227 Polling Institute Oxoda showed in 2015 the results of a national survey, whereby 73% of respondent said they did not want the government to repeal the equal marriage law, whereas 26% did. Another survey showed that 53% of respondent nationwide supported medically assisted procreation for lesbian couples. Furthermore, a survey of Catholic believers in twelve countries worldwide found that in France, 43% of respondents were in favour of marriage equality and 51% opposed it.228

2.9.4 Summary In 1789, France adopted the Declaration of the Man and of the Citizen, with its first famous article stating: ‘’men are born and remain free and equal in rights’’. The first article of the Constitution of 1958 is also very clear in the equality of all citizens before the law. However, the recognition of same-sex couples in France was a process and there is still a long way to go. With the PaCs bill in 1999, France became the one of the first countries in Europe to regulate samesex partnerships, but this was not achieved easily. Same-sex marriage and adoption became legal in May 2013. However, right-wing political parties and the Catholic, Protestant, Muslim and Jewish Communities heavily opposed it. There were many demonstrations against opening up marriage for same-sex couples, whereby aggression towards gay and lesbian individuals increased. Left-wing Socialist parties introduced both the PaCs and same-sex marriage bill. On the other hand, Anti-equality groups and right-wing politicians continue efforts to undermine equal marriage and adoption rights acquired in 2013. The law regarding medically assisted procreation for lesbian couples is still very controversial and the government shied away from further LGTB-friendly education reforms. Despite the opposition and criticism about reforms with regard to same-sex couples, NGO.

                                                                                                                      227 O. Fillieule & J.W. Duyvendak Gay and Lesbian Activism in France: http://www.jwduyvendak.nl/wpcontent/uploads/2015/07/gay-and-lesbian-activism-in-france.pdf 228 ILGA Report 2015: http://www.ilga-europe.org/sites/default/files/france_-_annual_review_2015.pdf

 

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2.10 Germany Written by Kinga Palińska 229

2.10.1 General Principles of Jurisdiction Germany is a federal parliamentary republic situated in west and central Europe. It consist of sixteen constituent states (Bundesländer).230 The formation of the Holy Roman Empire in 962 is considered to be the beginning of German statehood when Pope John XII crowned German king Otto I as Roman Emperor.231 Since then, the country has taken many different forms before it became the federal parliamentary republic it is today, such as the German Confederation (1815-1867), the German Empire (1867-1918), the Weimar Republic (1919-1933) and the Third Reich (1933-1945). At the end of World War II, the German territory was divided between four sectors controlled by respectively the United Kingdom, France, United States and Soviet Union.232 It didn’t take long before the three Western sectors merged into the Federal Republic of Germany and the Soviet Sector became known as the German Democratic Republic. Many escapes from the East to the West resulted in building the Berlin Wall, which is still worldwide recognized as symbol of the divided country and the Cold War.233 In 1990 the German Democratic Republic became part of the Federal Republic of Germany. As a result of this reunification (or annexation) the Federal Constitution of 1949 is still in force. As laid down in Article 20 of the Federal Constitution, Germany is a democratic republic. Article 79 (3) of the Federal Constitution ensures that this regime can never been changed by declaring any amendments to this article inadmissible. There is a division of powers into legislative, executive and judiciary. In order to guarantee the consistency of federal statutes with the Federal Constitution, the Federal Constitutional Court (Bundesverfassungsgericht) was installed in Karlsruhe. In the first place, the Court may render the statutes of the Parliament ineffective by declaring the unconstitutionality of certain legislation or specific provisions.234 The Court judges upon the implementation of the national human rights laid out in the Constitution by the government.235 Furthermore, individuals may file a constitutional complaint (Verfassungsbeschwerde) to the Court in order to claim their constitutional rights directly. Three requirements must be met for a complaint to be admissible. Firstly, an individual may file the constitutional complaint only after 229

Kinga Palińska is a postgraduate student (International and European Law: Trade and Investment Law) at University of Amsterdam. the 230 StatistischeÄmter des Bundes und der Länder website, based on Zensus 2011 http://www.statistikportal.de/statistik-portal/de_jb01_jahrtab1.asp 28/12/2015 231 J. Krasuski: Historia Niemiec (English: History of Germany). Warsaw, 2004, p. 49. 232 R. Gmür/ A. Roth, Grundriss der deutschen Rechtsgeschichte, Carl Heymanns Verlag, Köln, 2008, p. 194. 233 The Berlin Wall Memorial website http://www.berliner-mauer-gedenkstaette.de/en/the-berlin-wall-10.html 28/12/2015 234 The Federal Constitutional Court Act, Section 13 of 12 March 1951 (Federal Law Gazette I, p. 243 as amended) 235 The Federal Constitutional Court website http://www.bundesverfassungsgericht.de/EN/DasGericht/Aufgaben/aufgaben_node.html 28/12/2015

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going through all possible lower instances of ‘ordinary’ courts.236 This prevents the Court from being flooded with cases which do not concern complicated matters but can easily be solved by other courts. Secondly, individuals must be represented by a professional lawyer or equally qualified person, to ensure that the proceedings before the Court are as professional as possible.237 Moreover, in his or her claim submitted to the Court, an individual must prove that there is a possibility that his or her constitutional rights were violated. Since Germany is part of the Council of Europe and the European Union, its citizens may also seek justice in the European Court for Human Rights in Strasbourg or the European Court of Justice of the European Union in Luxembourg.

2.10.2 Equal Rights 2.10.2.1 Individual Protection Even though Germany is generally considered a homosexual-friendly country,238 there are some discrimination issues. The Federal Constitution guarantees fundamental rights (Grundrechte) which have a binding effect on each of the constitutional institutions, whether judiciary, legislative or executive, and on federal as well as on state level. Basic human rights can be found in Articles 1-19 of the Federal Constitution. The fact that they are placed at the beginning of the Federal Constitution, emphasises their importance. In the context of this paper, Article 3 is of importance. It forbids discrimination based on various grounds. The German government has introduced a number of other legal acts which has the aim to decrease the level of discrimination in the country on the grounds of a wider range of factors, such as sexual orientation. The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), adopted on 14 August 2006, aims to prevent discrimination on the grounds of age, disability, ethnicity, sex, religion and sexual identity in different fields.239 After the law entered into force, the Federal Anti-discrimination Agency (Antidiskriminierungsstelle des Bundes) was installed. The organization gathers data on discrimination cases and helps the people affected by discrimination.240 Moreover, the Federal Anti-Discriminatory Agency submits a report to the German Parliament (Bundestag) every four years, called “Detailing cases of discrimination and [making] recommendations on how to eliminate and prevent discrimination”.241 Article 90, par 2 point 1 of the Federal Constitutional Court Act Article 22 par 1 the Federal Constitutional Court Act 238 M. Calcutt Be Free and be Gay! The Top 10 Gay Friendly Countries in the World http://www.therichest.com/expensive-lifestyle/lifestyle/e-free-and-be-gay-the-top-10-gay-friendly-countries-in-theworld/?view=all 28/12/2015 239 General Equal Treatment Act (German: Allgemeines Gleichbehandlungsgesetz) of 14 August 2006 (Federal Law Gazette I p. 160). 28/12/2015 240 Antidiskrimierungsstelle – About us (2015, December 28). Retrieved from http://www.antidiskriminierungsstelle.de/EN/AboutUs/aboutUs_node.html;jsessionid=D95236EDE5F0CB71469 53F60BB87B4B5.2_cid322 241 Antidiskrimierungsstelle – Research (2015, December 28). http://www.antidiskriminierungsstelle.de/EN/AboutUs/Tasks/Research/research_node.html 236 237

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2.10.2.2 Recognition of relationships/family protection According to Article 6 (1) of the Federal Constitution, marriage shall enjoy the special protection of the state.242 Marriages solemnized abroad under foreign law are also recognized and granted protection under German law.243 Same-sex relationships however, are not covered this provision.244 Also it must be noted that special protection is only granted to monogamous relationships as polygamy is prohibited by law.245 Since the Federal Constitution and other legal acts don’t provide definitions of ‘marriage’ and ‘family’, these terms have been explained through the judgments. The Federal Constitutional Court has decided that marriage is ‘the union of a man and a woman meaning a long-term relationship formed by their free decision involving national authorities’.246 Hereby it reserves marriage for heterosexual couples, even though the Federal Constitution does not explicitly prohibit same-sex marriage in its wording. In case-law of the Federal Constitutional Court it is further decided that ‘family’ is ‘a community of parents with children’. “In this connection it is not significant whether the children are the children by birth of the parents and whether they are legitimate or illegitimate (…). Family is the actual long-term and upbringing relationship between children and parents who are responsible for the children. If the child lives together with both parents, they form a family together. If this is not the case, but both parents in fact bear responsibility for the child, the child has two families (…): the family with the mother and the family with the father (…).”247 The definition does not only cover the relations between the heterosexual parents and their minor children, but also regulates the status of the adult children as well as relationships of registered homosexual parents and their children and step-children.248 However, the definition is limited in the sense that it seems to be concerned mostly on family in its nuclear shape. Such an approach contradicts the broader understanding of the concept presented by the ECHR.249

2.10.2.3 Recognition of homosexual relationships 242 Grungesetz of 23 May 1949 https://www.bundestag.de/bundestag/aufgaben/rechtsgrundlagen/grundgesetz/gg/245216 28/12/2015 243 H. D. Jarass, GG -Grundgesetz für die Bundesrepublik Deutschland -Kommentar, Munich, 2012, p. 242, par. 4. 244 Federal Constitutional Court of Germany, Order of the First Senate of 17 July 2002, 13/09/2012: BVerfG, 1 BvF 1/01 of 17/07/2002, paragraphs no. 20, http://www.bverfg.de/entscheidungen/fs20020717_1bvf000101en .html.; 245 Federal Constitutional Court of Germany, Order of the First Senate of 30 November 1982, BVerfG, 1 BvR 818/81 of 30/11/1982 246 Federal Constitutional Court of Germany, Order of the First Senate of 6 December 2005, 13/09/2012: BVerfG, 1 BvL 3/03 of 06/12/2005, par. 60 http://www.bverfg.de/entscheidungen/ls20051206_1 bvl000303.html. 28/12/2015 247 Federal Constitutional Court of Germany, Order of the First Senate of 9 April 2003, 12/09/2012: BVerfG, 1 BvR 1493/96 of 09/04/2003, par 90. 28/12/2015 248 H. D. Jarass, op.cit. p. 243, par. 9. 249 H.D. Jarass, op. cit., p. 243, par.. 10.

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Homosexuality was not accepted as sexual orientation in Germany for a long time and was considered to be an aberration. The laws of the Holy Roman Empire foresaw death for having sexual intercourse with another man.250 The same legal regime was in force in Prussia in the 17th and 18th century.251 The beginning of the 19th century brought hope for homosexuals as in most German states same-sex relations were legalised.252 In 1871 however, the legislator criminalized all homosexual acts again.253 Despite the fact that this provision was still in force during the 1920s, there were many Gay bars in Berlin and they were tolerated by society.254 It is estimated that there were about 1.2 million homosexual men in Germany at that time.255 The number of lesbian women is harder to determine due to the fact that the public dispute concerned mostly men. The paragraph was deleted from the Criminal Code in March 1994 for good.256 In Nazi Germany the law punishing homosexual activity was extended.257 Penalties were severe: suspected offenders were held in prisons or sent to the concentration camps, where many of them died. An estimated number of one hundred thousand men were arrested as homosexuals, and of these, half was officially recognized as homosexuals.258 Most of these men spent time in regular prisons, and an estimated five to fifteen thousand was sent to concentration camps.259 Gay men had to wear a pink triangle on their clothes and were facing violence from the guards but also from other inmates.260 Lesbians on the other hand were treated as asocial people and when imprisoned, marked with a black triangle. In the documentary “Paragraph 175’, the life of homosexuals in the Third Reich is portrayed.261 In the German Democratic Republic homosexual relations between men remained a crime until 1968.262 One year later, the Federal Republic of Germany legalised sexual intercourse among persons of the same sex.263 At the present date, homosexuals are not allowed to marry under German law,. They do however have the possibility to formalize their relationship by entering a life partnership under L. Crompton Homosexuality and Civilization Cambridge, Massachusetts 2006 p. 156. Ibid. p. 504 252 Ibid. p. 528 253 R. Beachy The German Invention of Homosexuality The Journal of Modern History 82:4 (December 2010). 254 H. L. Ginn Gay Culture Flourished in Pre-Nazi Germany http://www.qrd.org/qrd/culture/1995/gay.culture.flourished.prenazi.germany-10.95 28/12/2015 255 The United States Memorial Holocaust Museum website http://www.ushmm.org/wlc/en/article.php?ModuleId=10005261 28/12/2015 256 D. Taffet Pink triangle: Even after World War II, gay victims of Nazis continued to be persecuted 20/01/2011 http://www.dallasvoice.com/pink-triangle-wwii-gay-victims-nazis-continued-persecuted-1061488.html 28/12/2015 257 David Taffet (2011, January 20). Pink triangle: Even after World War II, gay victims of Nazis continued to be persecuted. Dallas Voice. http://www.dallasvoice.com 258 Homosexuals | Holocaust Teacher Resource Center (2015, December 28). Retrieved from http://www.holocaust-trc.org/homosexuals/ 259 Ibid. 260 David Taffet (2011, January 20). Pink triangle: Even after World War II, gay victims of Nazis continued to be persecuted. Dallas Voice. http://www.dallasvoice.com 261 The IMDB website of the Paragrapgh 175 moviehttp://www.imdb.com/title/tt0236576/ 28/12/2015 262 F. B. Tipton A History of Modern Germany Since 1815 University of California Press. 2003, p. 584. 263 Ibid. 250 251

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the Act on Registered Partnership (Eingetragene Lebenspartnerschaft).264 This institution was introduced to the German legal system on 1st August 2001 and is suitable for homosexual persons only. According to the data gathered, 68 268 people were living in a life partnership in 2011.265 Section 1 of the Act gives the requirements for a life partnership. A life partnership can only be established between two non-minor, same-sex persons who are: •

willing to enter the partnership

unmarried and not yet in a life partnership

not relatives in direct line or full/half siblings.

Further sections of the Act govern the issues of the duty to care about the partner (section 2), name of the partners (section 3), maintenance (section 5), inheritance (section 10) and influences of the partnership contract on other areas of life. Many regulations are similar to those governing the marriage: The partners have a right to inherit after each other; take the partner's name; have common property; have the duty to care for each other etc. Recent judgments of the Federal Constitutional Court seem to take the course of equalizing the rights of married couples and registered partners also in terms of tax benefits. Particularly interesting regulations concern the possibility of adoption of a child. In general, the adoption of children by homosexual couples is excluded. The partnership contract provides an exception – Section 9 allows an adoption of a child of one partner and exercising custody over him/her by the other. This kind of adoption is called a “successive adoption” and was confirmed by the ruling of the Federal Constitutional Court in Karlsruhe on 19 February 2013.266 When taking a careful look at case law, the Federal Constitutional Court seems to support gay rights for marriage.267 However the ruling of 21 February 2014 was not favourable for the samesex couple wanting to adopt a child jointly, due to technical legal issues.268

2.10.3 National Policy Surveys prove that the support for gay marriage rights is relatively high within the German society and the support increases every year. The results of a survey held between 27th December 2012 and 6th January 2013 state that 66% of the German inhabitants showed support

264 Act on Registered Life Partnerships of 16 February 2001 (Federal Law Gazette I p. 266), last amended by Article 2 of the Act of 20 June 2014 (Federal Law Gazette I p. 786) http://www.gesetze-iminternet.de/englisch_lpartg/englisch_lpartg.html 28/12/2015 265 Zensus 2011 https://www.zensus2011.de/SharedDocs/AktuellesEN/Press_release_of_the_federal_statistical_office_2014_04.ht ml?nn=3068736 28/12/2015 266 G. Jones German court expands adoption rights of gay couples Reuters website 19/02/2013 http://www.reuters.com/article/us-germany-adoption-idUSBRE91I0TS20130219 28/12/2015 267 The Local.de High court backs equal rights for gay marriages http://www.thelocal.de/20091022/22757 28/12/2015 268 N. Demuth German court rejects case to allow gay adoption on technicality Reuters website21/02/2014 http://www.reuters.com/article/us-germany-gayadoption-idUSBREA1K10T20140221 28/12/2015

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for homosexual marriages and 59% were in favour of adoption of children by gay couples.269 The survey for RTL and the Stern magazine from 2013 shows that 74% of Germans are in favour of homosexual marriages.270   This support is illustrated by the number of institutions, places and events supporting homosexuals. The older surveys show however that support towards homosexual relationships is being shaped differently when it comes to the different age groups. According to the report of the Danish Institute for Human Rights, minors seem to be less positive about gays and lesbians (71% of boys and 51% of girls agreed with the sentence “I don't like gays and lesbians (at all)”).271 The information shows also that some ethnic groups living in Germany are less tolerant towards gay relationships than others. Of German boys 47.7% found two men kissing abhorrent, compared to 78.9% of those with Turkish background.272 Moreover, according to the aforementioned report, many homosexuals are still afraid to reveal their orientation at the workplace. About 52% of homosexuals do not talk about their sexuality with their colleagues. The most popular types of discrimination they face at the workplace are rumours, mockery and ridicule.273 The report implies that some places are more likely to be not suitable for the LGBT people than others – military and religious facilities are deemed to have the least friendly working environment in contrast to sales, marketing departments or NGOs.274 The left-wing German magazine Der Spiegel also points out that there are incidents which prove the existence of some groups which do not accept the fact that gays and lesbians are granted more and more rights.275 LGBT organizations do not only support LGBT environment but also promote the idea of granting gay people more rights, including the right to marry. For instance, the Hirschfeld-EddyFoundation which was established in 2007, is fighting for human rights of LGBT people by providing concrete aid for sexual minorities as well as by organizing events which initiate the acceptance for same-sex relationships.276 Lesben und Schwulenverband (LSVD) is dealing with “issues of legal and social discrimination, marginalization and violence, while also aiming to improve the situation of lesbian and gay rights in German society by promoting personal You Gov /EMEA survey results http://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/ak4r6iaz4u/YG-Archive-results-DecemberEuroTrack.pdf 28/12/2015 270 G. Jones (2015, December 28). Most Germans support gay marriage, poll shows. Reuters. http://uk.reuters.com 271 Danish Institute for Human Rights, The social situation concerning homophobia and discrimination on grounds of sexual orientation in Germany (2009). Retrieved from fra.europa.eu/.../375-FRA-hdgso-part2-NR_DE.pdf 272 Ibid. p. 5. 273 Ibid. p. 8. 274 Ibid. p. 8. 275 A. Kistner, D. Kurbjuweit, A-K. Müller, S. Salden (2016, January 12) Hidden Homophobia: Is Germany Really as Liberal as It Seems?, http://www.spiegel.de/international/germany/germany-debates-gay-rights-after-profootballer-hitzlsperger-comes-out-a-943216.html 276 Hirschfeld-Eddy-Stiftung: About Us (2015, December 28).Retrieved from http://www.hirschfeld-eddystiftung.de/en/foundation/about-us/ 269

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emancipation, greater political and social participation and opportunities for full integration into society”277. Opened in the mid 80's, Centrum Schwule Geschichte in Cologne278 and Schwules Museum in Berlin279 are very important institutions which present the history of homosexuality, social issues and gay cultural world. Other organisations like Quanteera provide educational services in the field of LGBT matters.280 The Berlin Pride281 and Cologne Pride282 serve as an opportunity to support legal claims concerning same-sex marriages. German cities offer many places where gay people can spend their free time including bars, clubs and hotels targeting homosexuals particularly.283 They claim to be the biggest events of this kind in Europe. Some prominent politicians like Guido Westerwelle (former Minister of Foreign Affairs)284, Stephan Kaufmann (member of the conservative party CDU)285 or Klaus Wowereit (the author of famous sentence “I am gay – and that's a good thing!” (Ich bin schwul – und das ist auch gut so!286) decided to come out of the closet. It does not seem that their sexual orientation affects the way they are perceived in a negative way.

2.10.4 Summary The German solutions seems to be a compromise between supporters of homosexual marriages and conservative opponents – the same-sex couples are granted the possibility of living in relationships recognized by the law. However the institution of marriage remains to be reserved for a man and a woman. This solution should be found an amicable way to show respect to different groups of interests. The legal frame equalises the rights and entitlements of homosexual and heterosexual couples, but at the same time differentiates concerning some issues such as child adoption. The society's support, the number of NGO's fighting for the rights of homosexuals, cultural institutions, leisure activity places targeting the LGBT environment, creates a friendly environment for homosexuals in which they can exercise their rights.

                                                                                                                      LSVD: The Lesbian and Gay Federation in Germany (2015, December 28). Retrieved from https://www.lsvd.de/ziele/buergerrechte/lsvd-the-lesbian-and-gay-federation-in-germany.html 28/12/2015 278 Über Uns – Centrum Schwule Geschichte e.V. (2015, December 28). Retrieved from http://www.csgkoeln.org/wir-ueber-uns 279 Bewegung.taz – Schwules Museum Ueber uns (2015, December 28). Retrieved from http://bewegung.taz.de/organisationen/schwulesmuseum/ueber-uns 28/12/2015 280 Russland – Gender – Weiblich. Mannlich. Rollen. Tausch. – Goethe Institut (2015, December 28). Retrieved from http://www.goethe.de/ 281 Gay Pride Berlin (2015, December 28). Retrieved from http://www.gaywelcome.com/gay-eventsdetail/94/pride/berlin/berlin-gay-pride-csd-berlin.php 282 Cologne Pride 2015 KLuST e.V. ColognePride (2015, December 28). Retrieved from http://www.colognepride.de/colognepride-2015/ 283 Gay Germany Guide 2015 – bars, clubs, sauna & more (2015, December 28). Retrieved from http://www.travelgayeurope.com/destination/gay-germany/ 284 Guido Westerwelle Heiratet Michael Mronz (2010, September 17). Bild. http://www.bild.de 285 Stephen Brown and Noah Barkin (2012, December 5). Merkel veut réveiller la CDU grâce aux femmes et aux immigrés L'obs Monde. L’Obs. http://tempsreel.nouvelobs.com/ 286 Ein Zitat und seine Geschichte “Ich bin schwul – und das ist auch gut so” (2015, April 5). Tagespiegel. http://www.tagesspiegel.de/ 277

 

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2.11 Greece Written by Panagiotis Viopoulos287

2.11.1 Historical Facts and Human Rights Legislation Greece (officially: Hellenic Republic) is an independent state since 1830, when Greeks claimed territorial integrity and political independence in an area previously controlled by the Ottoman Empire. Greece was one of the founding member-states of the UN in 1945 and it is also a member-state of the EU since 1981. Greece constitutes a Parliamentary Republic288 in which the President serves as the Head of State with no substantial competences, the legislative power is mainly exercised by the National Parliament and the President (authority in procedural matters)289 and the general policy of the state belongs to the Greek government.290 Actually, all the Greek constitutions, even those drafted during the revolutionary period (18211830), included many provisions concerning human rights.291 The current Greek Constitution, drafted in 1975, reviewed and modified in 1986,2001 and 2008, includes also a part called: “Individual and Social Rights”(Articles 4-25). The rights of LGBT persons are not mentioned specifically; nevertheless they can be protected under the general provision for the protection of the free development of personality, since there is no concrete reference to the freedom of sexual orientation. Furthermore, the constitutional provisions for the protection of marriage, family and childhood292 do not make any reference to homosexual couples and their rights. Marriage, however, both in the Constitution and in the Civil law code, is defined in a gender neutral wording, without reference to sex difference. In general, the legislative power produces internal legislation on the protection of human rights, including in some legal texts provisions about the protection of the LGBT persons’ rights, especially legislation generated by EU law. As for the applicable in Greece international legal framework on the protection of human rights, it is mainly enshrined by the provisions of the ECHR, alongside with other international treaties on human rights which have been signed and ratified by Greece. According to Article 28 para.1 of the Greek Constitution, international treaties supersede statutory law. In addition, being a member of the EU means that the provisions of the Charter Fundamental Rights of the EU are applicable in Greece. Regarding the monitoring and the guarantees of the implementation of human rights legislation in Greece, there is no constitutional court in Greece, so any court of justice may adjudicate on Panagiotis Viopoulos is an undergraduate Law student at the Aristotle University of Thessaloniki Article 1 para.1 of the Greek Constitution 289 Article 26 para.1 of the Greek Constitution 290 Article 82 para.1 of the Greek Constitution 291 Chrysogonos, «Individual and social rights» (in greek), p.9 292 Article 21 of the Greek Constitution.

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the non-compatibility of a law or of an administrative act with constitutional provisions that guarantee the protection of human rights, as well as with the international and EU law on human rights. Actually, many cases concerning the violation of human rights, especially by the state’s authorities, are brought before the supreme court of administrative justice (called Symvoulio tis Epikratias, Council of State). Furthermore, any person in Greece can apply to the ECtHR if he/she suffered violation of protected by the ECHR human rights.293 As for the non-judicial bodies that monitor the protection of human rights, this duty is delivered by the Greek Ombudsman, the National Committee of Human Rights, the services of the Ministry of Justice, Transparency and Human Rights and all the authorized bodies and committees of the UN, the EU and other international organizations.

2.11.2 Discrimination issues on the grounds of sexual orientation 2.11.2.1 Discrimination found in the Greek legislation and relevant issues Greek legislation has been continuously accused of being discriminatory against LGBT persons. Despite the adoption of certain measures towards the opposite direction, the discussion on the issue was holding on specific allegations for a very long time. However, the enactment of the right of same-sex couples to conclude a contract of “civil union” in December 2015 has given birth to a new perspective vis-à-vis the rights of the respective couples and of the LGBT community as a whole. As far as the previously existent status is concerned, first of all, Greece had excluded same-sex couples from the scope of Law 3719/2008, which had given only to the heterosexual-couples the right to regulate their common life through an alternative to the marriage legal bond, called “Civil Union”. Following applications of some homosexual couples before the ECtHR, the famous “Vallianatos and others vs. Greece” case and the respective decision of the ECtHR, which will be elaborated later in the research, declared that Greece violated Articles 14 and 8 of the ECHR.294 And this exclusion entailed, according to the aforementioned ECtHR judgment, a discriminatory treatment against same-sex couples,295 meaning obviously discrimination on grounds of sexual orientation. Nonetheless, in January 2015, the Minister of Justince mr. Nikos Paraskevopoulos had declared during his opening speech in the Greek Parliament that the aforementioned law has to be modified in order that its scope be extended to the civil union of same-sex couples, as well. Eventually, the Ministry of Justice, Transparency and Human Rights published in June a draft law with the aforementioned context. The political and financial turmoil caused in Greece during June 2015 led to new elections in September 2015 when “Syriza” came again into power and mr. Paraskevopoulos was appointed again as Minister of Justice. After 3 months approximately, Greek Parliament voted in

293 Article 35 ECHR. However, an individual can apply to the ECHR only under the prerequisite of exhausting all the remedies of the national judicial system. See also, Sachpekidou, “European Law”, p.137 294 Vallianatos and Others v. Greece, 7 November 2013 295 See also Papadopoulou ,”The legal meaning of family and the homo-sexual couples: lessons by the European Court of Human Rights” in “Honourary Volume for Efi Kounougeri-Manoledaki”, p.44-45

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favor of the Law no. 4356/2015. Articles 1-14 of the latter refer to the contract of “civil union”. Their analysis will be found in a following part of the present study. Homosexuality had been also met in the Greek Penal Law, deemed as a criminal action. Specifically, sexual relations between men had been considered as a criminal action by the Greek Penal Law which could be considered as a serious discrimination on sexual orientation until 1950. Even though the decriminalization of homosexuality happened 65 years ago, Greek Penal Code included also, until very recently, a provision, Article 347, which had been condemned by Greek LGBT associations. In particular, Article 347 para.1b was criminalizing any “lascivious” sexual act between an adult man and a man under 17 years old. In other words, a gay man could legally have sexual relations with another man under the prerequisites that the latter wanted to do so and was no forced, as well as that the latter was also at least 17 years old. There are no specific provisions concerning any sexual practice between women. On the contrary, the respective provision of the Greek Penal Code for the legal sexual practices between a man and a woman, with one of them being adult and the other not, poses the age of 15 as a minimum of age so as the adult not to act illegally. The aforementioned provisions indicate that the minimum of age in which a person can legally consent in having sexual relations, without also the adult partner committing a crime, was different between gay men and the heterosexual persons. This differentiation gave birth to the logical discussion on the fact that an issue of discrimination against LGBT persons, actually gay men in this case, existed.296 Moreover, we should bear in mind that the Article 347 was using the term “unnatural”297 in order to describe the sexual relations between two men. This term had been considered as insulting for the LGBT persons and it was increasing the sense of discrimination on the grounds of sexual orientation.298 Nevertheless, according to Article 68 of Law no.4356/2015, Article 347 of the Greek Penal Code, and hence the aftermath described above, is annulled and now it is not part of the legal order in Greece. However, there is a Greek Penal Law provision that does take into consideration the persons that are facing discrimination because of their sexual orientation. Article 81A for the “Racist Crime”, which concerns the calculation of the penalty, provides that if someone commits a crime with racist motives, including with a concrete reference the different sexual orientation as such a motive, they will be punished more severely, meaning with a penalty of more years than the one provided for the typical form of the crime.299 Furthermore, the modification of the Law 927/1979 that took place in 2014 included in the incriminated acts of Article 1 any provocation or instigation of discrimination practices on the grounds of sexual orientation or gender identity, but there is still no specific provision that incriminates the concrete practice of discrimination See also Hatzopoulos, “Legal Study on Homophobia and Discrimination on the grounds of sexual orientation in Greece”, p.5 In the Greek text(article 347 para.1 Penal Code) the term used is « Μελλόνυμφοι ». 298 For further thoughts on this issue see also “The existing situation in Greece” uploaded in the official page of OLKE, a Greek NGO operating in the field of protecting and informing about the rights of LGBT persons. Link: http://www.olke.org 299 See also Hatzopoulos, as mentioned above, who refers thus to the former legal provision which was providing similar consequences 296

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due to sexual orientation itself. The victims can be protected otherwise by the Penal Code provisions300 concerning crimes against the dignity of a person or by the Civil Code provisions301 concerning the remedy of harmful to a person’s personality practices.302

2.11.2.2 Discrimination or non-discrimination issues found in the workplace or in administrative procedures The annual reports of the Greek Ombudsman on the issue of discriminations in Greece provide us with helpful information on the issue of discriminatory stance against LGBT persons in Greece. Specifically, even though303 there has been a significant increase of complaints brought to it in 2014 in comparison to 2012 and 2013 when only two and one complainants respectively had been delivered to it,304+305 the Greek Ombudsman has faced very few incidents of discrimination on the grounds of sexual orientation. Nevertheless, the small number does not indicate lack of discriminatory behavior. According to the Greek Ombudsman’s reports, the inexistence of complainants was based on the hesitation of the victims because of the general situation concerning LGBT persons in Greek society306 which make the victims of such behaviors uneager or afraid of giving publicity to these incidents. Additionally, the aforementioned increase during 2014 is the result of the cooperation between the Greek Ombudsman and LGBT organizations in Greece.307 Greece has also transposed in its legal order the Directives 2000/78/EC and 2000/43/EC by the law 3304/2005. However, the aforementioned law has been accused as being inefficient because its scope and its mandate concerning the prohibition of discrimination on the grounds of sexual orientation is restricted and applies only to incidents that take place in the workplace

Articles 361-369 of the Greek Penal Code and other provisions of penal law Articles 57-59 of the Greek Civil Code 302 Hatzopoulos, as mentioned above 303 According to the Annual Report of 2014(p.129) by the Greek Ombudsman, the following incidents of discrimination on the grounds of sexual orientation have taken place: there were allegations for insulting behavior and even for a firing because of the sexual orientation of an employee, for “bullying” against students in certain schools due to their sexual orientation. There were also complaints made by LGBT persons to the Greek Ombudsman because of insulting behavior exercised by policemen. 304 According to the Annual Report of 2012 by the Greek Ombudsman(p.112), the two discrimination issues are the following:1) the cut of a scene of a kiss between two men in a TV series of foreign production demonstrated by the Greek public television channel. Afterwards, the actions of the Greek Ombudsman led the TV channel to show again this episode of the series including also the “controversial” scene. 2)An incident in the workplace: An employee complained that he was treated in an insulting way by his colleagues. 305 According to the Annual Report of 2013(p.110), the only complaint delivered to the Greek Ombudsman was made by a Greek woman whose request for a certain document was rejected by the Greek Embassy in Belgium because of the fact that she would use for marrying her girlfriend in Belgium. The rejection was justified by the claim that in Greece this kind of marriage is not recognized. 306 Annual Report of 2012 by the Greek Ombudsman, p.112 and Annual Report of 2013 by the Greek Ombudsman, p.110 307 Annual Report of 2014 by the Greek Ombudsman, p.128 300 301

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and in general which concern only employment and occupation conditions.308 The Greek Ombudsman has also recognized the limited scope of this anti-discrimination law.309 Actually, LGBT persons are not facing discrimination problems concerning their freedom of assembly, a fundamental right established and protected by the Articles 10 and 11 of the Greek Constitution. The famous “Pride Parades” are taking place each year in Athens and Thessaloniki, the biggest cities in Greece, with an increasing number of participants and the cooperation of the local administration bodies310 and without any discrimination problems in administrative procedures or behavior of the police.311 The aforementioned initiatives have met the reaction of some bishops of the Greek Orthodox Church and certain social and political factors, which would be presented in a following part of the research. As for the trans persons, there are no specific legal provisions dedicated to these groups of people, but since the surgery of modifying sex takes place, the whole necessary procedure can be launched in order that the transgender person to change his/her name and being recognized as a person of the post-surgery sex. However, trans persons face many difficulties and discrimination problems, even nowadays, especially if they have not modified their sex through a surgery or if they have not changed the appropriate documents. The mismatch between the documents and what a person looks like leads to discrimination against these people in many sectors of everyday life, in the workplace, in studies, in administrative services etc.312

2.11.3 Homosexual couples and Legal bonds 2.11.3.1 Marriage 2.11.3.1.1

Arguments supporting that marriage is a legal bond provided only for the heterosexual couples

Heterosexual couples in Greece are granted by the Greek law all the rights that two persons constituting a “union of living” can gain. Until December 2015, only heterosexual couples in Greece had both the right to be married and the right to sign and coordinate their common life with a “contract of free union”(“civil union” according to the wording of the law). Actually, same-sex couples enjoy equal rights as far as the contract of civil union is concerned. Regarding the right to marriage, although a part of the theory claims the opposite, it seems, at least in practice, that same-sex partners are not entitled to marry each other.

308 Hatzopoulos, “Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity”, issued under the auspices of the European Union Agency for Fundamental Rights, p.3 309 Annual Report of 2012 by the Greek Ombudsman, p.112 310 For further information: http://athenspride.eu/cms/ 311 Hatzopoulos, as mentioned above, p.4 312 For specific examples and further information see also: Hatzopoulos, as mentioned above, p.5 and http://www.huffingtonpost.gr/2015/05/17/koinonia-transphobia_n_7300192.html?ncid=fcbklnkgrhpmg00000001

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Specifically, the provision of Greek Civil Code313 on marriage does not make any reference neither to different sex nor to a marriage between a man and a woman. However, according to the prevailing opinion in the Greek family law theory is that the difference of sex of the marrying persons is a substantial prerequisite, belonging in the “essentialia negotii” of the legal act of marriage.314 This view is based on an historical interpretation of the aforementioned legal provision, claiming mainly that Greek legislators, back in 1946 when the Greek Civil Code was first written and adopted and in 1983 when family law was reformed on its bigger part, could not have considered that a marriage between two persons of the same sex may ever take place.315 In particular, other than the historical interpretation, additional arguments provided in order to support the aforementioned opinion count as following: firstly, the substance of marriage, as a term and as a social or legal institution, consists of the heterosexuality of the couple.316 However, it is recognized that, according to the above-mentioned point of view, there is no constitutional rejection to the possibility of a marriage between homosexuals, provided that the common view would change. Additionally, it is plead that marriage is dedicated to the creation of family and the acquisition of children who cannot be biologically acquired by homosexual couples and also cannot be adopted by them under the existing legal framework. Also, the religious background on the meaning of marriage and the possible dangers for the rights of heterosexual couples are presented as reasons of accepting that marriage can exist only between a man and a woman.317

2.11.3.1.2

The issue of the “homosexual marriages” in Tilos

Great discussion upon the aforementioned issues has taken place and the respective opinions appeared in 2008, when two marriages of homosexual couples, following the civil ceremony, were held in Tilos by the mayor of this small Greek island. Following inter alia the aforementioned criteria, the court of first instance of Rhodes concluded that there cannot be a marriage between persons of the same sex and declared these two marriages as inexistent.318 This case has reached today the Supreme Court on these issues in Greece, called “Hareios Pagos”. However, it is published that the rapporteur of the court insists on the opinion that the two marriages are legally inexistent.319

Article 1350 of the Greek Civil Code. The aforementioned article makes only a reference to “persons that are going to marry with each other”(in Greek the term used is: «μελλόνυμφοι») 314 Kounougeri-Manoledaki, “Family Law-Abstract”, p.33 315 Mallios, «Consolidation of the homosexual couples’ union: the Greek reality and the European dimension(ECHR”), p.1 316 Katrougalos,” 3+1 opinions on the marriage of homosexual couples”, published in the website: http://manesis.blogspot.gr/search/label 317 Mallios, “Right to marriage: constitutional privilege of heterosexual couples or a right for homosexual couples too?” in which he rejects some of the arguments that support the first part of the rhetorical question. Also published in http://manesis.blogspot.gr/search/label 318 Judgement 114/2009 of the Court of First Instance of Rhodes(«Πολυμελές Πρωτοδικείο Ρόδου») , as published in the website: http://elawyer.blogspot.gr/2009/05/blog-post_10.html 319 Since there is no judgement, we cannot foresee the final judgement of the court. Nevertheless, the rapporteur’s opinion on this issue and the perspective that he adopts is nothing but clear. See also: http://www.tanea.gr/news/greece/article/5219566/anypostatos-o-politikos-gamos-metaksy-omofylwn-thayposthriksei-o-areopagiths-eishghths-ston-areio-pago/ 313

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2.11.3.1.3

The opposite view which accepts that marriage of homosexual couples can be held under the current legal framework

The supporters of the view that marriage between homosexual couples can be considered as existent and valid under the current legal framework (de lege lata) is based on the text of both the Greek Constitution and the Greek Civil Code. As it has been previously mentioned, neither Article 21 of the Greek Constitution nor Article 1350 of the Greek Civil Code refer to marriage by making a distinction between a man and woman. So, both the grammatical interpretation of the law, combined with the principle of gender equality and of non-discrimination on the grounds of sexual orientation, and the fact that the common belief has been transformed on this issue by not considering marriage between homosexual persons as illogical or imaginary lead to the “de lege lata” acceptance of the marriage of homosexual couples in the Greek legal order320. Besides, the aforementioned thoughts can be utilized so as to avoid also the otherwise necessary modification of the current legal framework on marriage. Furthermore, the Greek Civil Code provisions do not provide definitely the difference of sex as a prerequisite for an existent marriage, but they pose other ones, such as a certain lowest age, the inexistence of a specific relationship etc.321 Furthermore, it is claimed that nowadays marriage is no longer connected with the family, as its existence is interpreted broadly and a single parent with children or two no married parents with children or two married persons without children can be recognized as “family”. Notwithstanding the previously mentioned, marriage is not always a step towards creating a family by the acquisition of children, because the capability of bearing a child is not included in the prerequisites of marriage and family is not based only on biological criteria, but also on mutual love, respect and sentiments. Therefore, according to this point of view, two major arguments for the recognition of marriage only for heterosexual couples can be rejected322.Moreover, the supporters of this view estimate that arguments based on the religious perspective cannot be taken into account, since a couple is able to get married through the political procedure, with no interference of the authorities of each religion.323 Finally, the possible danger for the rights of heterosexual couples cannot be presented as an argument since the will of homosexual couples is the mutual recognition, for both types of couples, of the same rights and not the restriction of the rights granted to heterosexual couples.324

2.11.3.1.4

Conclusion

Before summing up, the following clarification concerning the restriction on the marriage of homosexual couples is very interesting. Even though partners in a heterosexual couple have the                                                                                                                       320 See also: Papadopolou, “Marriage between homosexual persons? An attempt to make a legal and sociological evaluation”, Mallios, “Consolidation of the homosexual couples’ union: the Greek reality and the European dimension(ECHR)” 321 Vidalis, “Marriage between homosexual persons”, published in manesis.blogspot.gr 322 Papadopoulou and Mallios, as mentioned above 323 Article 1367 of the Greek Civil Code 324 Mallios, as mentioned above

 

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right to marry each other, since the difference of sex is considered as a sine qua non prerequisite of an existent and valid marriage, the sexual orientation of the couple is not also a prerequisite for being married. In other words, a gay man can marry with a lesbian woman, because the theory-originated restriction concerns the difference of sex and not the sexual orientation which actually cannot be controlled as it is an issue belonging in the “cell” of a person’s personality.325 In conclusion, although the opinion that marriage between homosexual persons shall be accepted under the current legal framework is not weak or supported only by a few, the opposite view, meaning the one that excludes homosexual couples from marriage, is the most accepted in legal theory and practice. Consequently, homosexual persons in Greece cannot get married and the legal bond of marriage is available only for the heterosexual couples. However, the possibility of a future extension of the right of marriage to homosexual couples cannot be rejected.

2.11.3.2 Civil Union 2.11.3.2.1

Law 3719/2008 and the judgment of ECtHR in the “Vallianatos and others vs. Greece” case

In 2008, Greek state established for the first time a new form of legal bond, the contract of “civil union”. This legal bond is not as strong as the marriage and it does not create the same to marriage rights and obligations for the couple. Its character is more private than the one of marriage326 and it includes provisions concerning inheritance rights, the common life of the couple and the issue of acquiring children, but excludes from its scope the right of the couple to adopt children. However, the exclusion of the homosexual couples from its scope, as Article 1 of the aforementioned law, before being amended by Law 4356/2015, was making a concrete reference to “different-sex” couples, had created much discussion and finally led to the aforementioned judgment of ECtHR which recognized that Greece breached with this law Articles 14 and 8 of the ECHR. In particular, the ECtHR declared that the provisions of Law 3719/2008 was constituting discrimination against homosexual couples as they are treated differently in comparison to the heterosexual couples. And this different treatment was based on their sexual orientation. It should be also clarified that the aforementioned judgment did not pose to the Greek state a general positive obligation to provide a form of legal recognition to homosexual couples, but solely recognized the discrimination committed.327+328 Besides, the previously existent situation, as this law was active in the Greek legal order until the adoption of Law 4356/2015, entailed also the following discrimination: there were persons that were granted both 325 Papadopoulou, “Marriage of homosexual couples…the greek way” on which Pervou is referring in the study: “The exclusion of homosexual couples from the contract of free union as a discriminatory treatment on the grounds of sexual orientation”, published in the website: www.constitutionalism.gr 326 Kounougeri-Manoledaki, “Family Law-Abstract”, p.603 327 See also, Tzevelekos, “Three points of view concerning the judgement of the ECtHR on the exclusion of homosexual couples from the contract of civil union” 328 Vallianatos and Others v. Greece, 7 November 2013

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the right to marriage and to civil union, while others were excluded from all types of the legal recognition of a relationship, just because of their sexual orientation.329 Taking into consideration the disenting opinion of Judge Pinto de Alburqueque and the common view in Greek legal theory, there were also the opinion that the scope of the law concerning civil union shall be extended “de lege ferenda” to homosexual couples, too.330 By virtue of all the aforementioned, the Ministry of Justice, Transparency and Human Rights decided to extend the scope of Law 3719/2008 to same-sex couples and the extension has been enacted after the adoption of Law 4356/2015. Besides, many representatives in the Greek Parliament, as well as the Minister of Justice, invoked the judgment of the ECtHR in “Vallianatos case”, as a fact which has been justifying their support to the respective law.

2.11.3.2.2

Law 4356/2015331 and the extension of the right to conclude a contract of “civil union” to same-sex couples

The former legal status concerning the relations of same-sex couples had been in force until the 24th of December 2015 when Law 4356/2015 was published in the Official Gazette of the Government and, pursuant to Article 69 of the latter, Law 3719/2008 as amended by Articles 114 of Law 4356/2015 is applicable in Greece as far as the civil union is concerned, meaning that same-sex couples enjoy equally with the heterosexual couples the right to conclude a “civil union” and regulate by virtue of the latter their relationship. As for the concrete provisions of the law, the right to sign a contract of civil union is extended to same-sex adults (Article 1). Article 2 is referring to the conditions for the conclusion of a valid civil union and Article 3 is referring to when a null or voidable contract of civil union exists, as well as on the way of recognizing and declaring the nullity or the voidness of the latter. Moreover, pursuant to Article 4, each party’s surname does not change because of the civil union, but each party may use the surname of his or her partner in the context of social relations, provided that the latter will consent to this usage. Furthermore, the adjustment of the relations between the parties of the civil union is mainly based on the relevant provisions for marriage. In particular, Article 5§1 provides that the personal relations of the partners of the civil union are adjusted pursuant to the relevant provisions on marriage which are applicable by analogy, unless there is a special legal provision with a different context on the issue. Regarding the non-personal relations of the couple, the relevant provisions of marriage are applicable by analogy, but the parts of the civil union are Mallios, as mentioned above, p.8 Kounougeri-Manoledaki, “Family Law-Abstract”, p.604 and Kotzampassi, “Contract of civil union and marriage between homosexual persons-a first approach”. 331 For the whole text of Law 4356/2015(in Greek) follow the link: http://www.et.gr/idocsnph/search/pdfViewerForm.html?args=5C7QrtC22wE4q6ggiv8WTXdtvSoClrL8RZsdmVE36E95MXD0LzQTL WPU9yLzB8V68knBzLCmTXKaO6fpVZ6Lx3UnKl3nP8NxdnJ5r9cmWyJWelDvWS_18kAEhATUkJb0x1LIdQ1 63nV9K--td6SIuVoHeYO-VoUaxueGay4CXn5RDBq72FoViJdyfkM3t-nE 329 330

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entitled to adjust these relations in a different way by making a concrete reference in the contract of civil union. However, none of them can waive its right to after-acquired assets before its birth. It can do so only when such a claim will be born (Article 5§2). The non-personal relations of the parties are taken into consideration by the present law and also when it comes to the nonadjusted by a civil union cohabitation. Regardless if same-sex or different-sex couple, Article 6 entails that the provisions on unjust enrichment are applicable by analogy in cases concerning the fate of the assets acquired after the commencement of the cohabitation. As far as the dissolution of the civil union is concerned, the preconditions and the reasons entailing the latter are provided by Article 7 of Law 3719/2008 as amended by Law 4356/2015. Regarding Articles 9 to 11, they refer respectively to the presumption of paternity, to children’s surname and to parental responsibility. Therefore, they are not at this stage applicable to the same-sex civil unions, as the same-sex partners do not yet enjoy the right to adopt children and they cannot acquire biologically children as a couple. Aa provision on the adoption of children by the partners of a civil union, either of the same or of the different sex, was not included in the law lastly enacted, but also there was not a provision excluding this in a definite manner, meaning that in the future a new round of parliamentary and social discussions on the issues, as well as relevant legislative initiatives, may arise. The provisions of the Civil Code on heritage are applicable by analogy in the case of civil unions (Article 8, whilst the partners may waive the right to legal reserved proportion in their contract of civil union. Moreover, both heterosexual and homosexual couples, if bonded with a civil union, may gain further rights on the field of employment and social insurance. The details of these provisions and the respective amendments on labor law and social insurance law will be determined by a Presidential Degree following the proposals of the Minister of Labor, Social Security and Solidarity(Article 12). Regarding the scope of the present law, Article 13 provides that the law is applicable in all civil unions entered in Greece or before a Greek consular authority (paragraph 1). Paragraph 2 of this article provides also that as far as the dissolution of civil unions not belonging in the scope of Article 13§1 is concerned, the rules of the state where it was drafted shall be applicable and the relevant provisions of international private law apply in cases of hereditary claims. In any case, civil unions may not entail in Greece more results and consequences than those recognized and provided by the Greek legal order (Article 13§2c). Article 14 of Law 4356 refers to certain amendments of the wording of Civil Code provisions in order to include in their scope the partners of civil unions. According to Article 55 of Law 4356/2015, the same-sex or different-sex partners, which have concluded a marriage or a civil union pursuant to the law of a foreign state with members of diplomatic missions, members of consular posts and members or employees of international organizations that have their headquarters or office in Greece, shall be considered members of Legal Status of Same-Sex Couples in the EU 120


the families of the latter. Hence, the relevant rules of international law concerning the diplomatic and consular relations are applicable. Furthermore, Article 56 of the present law adds in Presidential Decree 497/1991 a new article, named as “Article 1A”. The latter provides that the conclusion of a civil union entails, provided that the procedural and substantial conditions will be respected, that the partners will belong to the same family register. It is more than crucial to mention, that the civil unions concluded before Law 4356/2015 come into force will continue to be adjusted by the provisions of the Law 3719/2008, apart from the provisions of Article 7§§1-2. Nevertheless, the parties of these civil unions may apply in the responsible bodies in order to be included in the scope of the amended law (Article 62§1 of the Law 4356/2015). Law 3719/2008 as amended by Law 4356/2015 shall be applicable without any reservations in all civil unions concluded after the date that it will be in force, meaning that from now on these are the only provisions to apply and be implemented. Finally, as already mentioned, both homosexual and heterosexual couples who signed a contract of civil union would not be granted the right to adopt children, since there is no specific reference neither in Law 3719 nor in Law 4356, whilst the provisions of Civil Code grant the right of mutual adoption only to married couples.332

2.11.4 Greek society’s view on the legal bonds for homosexual couples The common view of Greek society on the issues of homosexual sexual orientation, LGBT persons’ rights and the general legal status of the homosexual relationship has been transformed from a negative perspective to a positive one during last years, but there are certain social and political factors, such as the Greek Orthodox Church that strongly opposes to any recognition of rights to LGBT persons. Besides, Greek Orthodox Church is a social factor that influences many parts and groups of Greek society. Before 2009, according to surveys held in the whole of the EU, the 15% in Greece was in favor of same-sex marriage and only the 11% in favor of the adoption of children by homosexual couples.333 Nevertheless, a recent survey indicate a different perspective in Greek society. Specifically, 70% supports the extension of the civil union to the homosexual couples, while the 56% is in favor of the political marriage for homosexual couples. The same percentage, on the other hand, rejects the possibility of granting to homosexual couples the right to adopt children.334 As for the stance of the Greek Orthodox Church, towards LGBT persons’ rights, it is nothing but negative. Back in 2008, Greek Orthodox Church opposed to the civil union of the heterosexuals couples, even though homosexual couples were excluded, blaming the government

Articles 1542-1588 of the Greek Civil Code “The social situation concerning homophobia and discrimination on grounds of sexual orientation in Greece”(FRA report) 334 According to a survey published in a website concerning LGBT rights: http://www.avmag.gr/av/55007/erevnagia-tin-omofilofilia-stin-ellada-ne-sto-simfono-ke-stin-apodochi-ochi-stin-teknothesia/ 332 333

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for legitimizing “prostitution”.335 Today, Greek Orthodox Church is again opposing the Greek government. The extension of civil union to the homosexual couples was followed by the severe reaction of a bishop who characterized the homosexual relationships as being out of nature and as a factor of increasing cancer rates in modern societies(!).336 The Archbishop also accused, but moderately, the Minister of Justice who answered that he recognizes and respects the fact that homosexuality is considered as a sin by the rules of the Church, but he insisted that the right of people to choose freely their sexual orientation and to regulate their personal relations should not be rejected in a democratic legal order. Furthermore, he asked the Archbishop to express the views of the Greek Orthodox Church, as a social factor, in future discussion upon reforms in family law.337 Besides, some Bishops reacted fervently when the law for the extension of the civil union was submitted in the Greek Parliament and during all the period of the parliamentary deliberations on the issue. There had been insulting references to LGBT persons and even strange actions, as the one of a Bishop who ordered the local priests to strike the bells of the churches in a mournfully. However, a big part of the Greek society stood in favor of the extension of the civil union to same-sex couples by comments made in the press, the media and the social networks. Regarding the Greek political world’s view on the issue of the legal status of homosexual couples, their right to be granted a legal recognition of their relationship is in general acceptable, apart from very conservative, racist and radical left parties which are opposing not only to samesex marriage and adoption of children, but also to the extension of civil union to same-sex persons.338 The latter was clearly indicated during the discussions and the voting procedure on Law 4356/2015 in the Greek Parliament.

“The social situation concerning homophobia and discrimination on grounds of sexual orientation in Greece”(FRA report) http://www.iefimerida.gr/news/211625/omofovika-pyra-serafeim-gia-symfono-symviosis-sta-omofyla-zeygaria 337 The answer of Minister Nikos Paraskevopoulos can be found in the following link: http://www.iefimerida.gr/news/212638/paraskeyopoylos-ston-ieronymo-gia-symfono-symviosis-dikaioma-seaytoprosdiorismo-kai 338 http://vouliwatch.gr/pm/results/?coma=12,8,39,67,14,5,11&thesis=162 335 336

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2.12 Hungary Written by Lincy Mulder339

2.12.1 General principles of jurisdiction After several successive habitations by Celts, Romans, Huns, Slavs, Gepids and Avars, the Magyars emerged in 889. Their leader Arpad became the founder of a nation. His great-grandson Stephen I converted Hungary into a Christian Kingdom. The Battle of Mohacs in 1526 led to a partition of Hungary for several centuries between the Ottoman Empire, the Habsburg Monarchy and the Principality of Transylvania. Hungary came under Habsburg rule in 1699 and was part of the Austro-Hungarian Empire between 1867 and 1918. Hungary’s current borders were set up after the First World War with the Treaty of Trianon. However, after the Second World War, Hungary became a satellite state of the Soviet Union. The Communists introduced a tyrannical regime in Hungary.340 In 1989, after a constitutional amendment, which assured that a parliamentary democracy was established; Hungary again became a democratic parliamentary republic.341 The first democratic constitution of Hungary, the Fundamental Law of Hungary, entered into force in 2012. It succeeded the first constitution, which was adopted in 1949 and amended in 1989 and 1990 in more than fifty instances by the first freely elected parliament.342 Since its transition to a multiparty system in 1989, Hungary is a unicameral parliamentary representative democratic republic in which the Prime Minister is the head of government and the President of the Republic is the head of state. Between 2002 and 2010, there were attempts to draft a new constitution but due to the absence of a necessary parliamentary authorization and majority, there was no chance to adopt a new constitution.343 The 2010 Hungarian parliamentary elections made the adoption of a new constitution possible. The party-coalition FIDESZ-KDNP, possessing the necessary two-thirds majority, drew up the text of the Basic Law and adopted the Fundamental Law of Hungary in 2011 after plenary debates and negotiations on motions for modifications.344 The Basic Law begins with The National Avowal, which involves the declaration of independence and national identity and the emphatic acknowledgement of societal communities. The National Avowal is followed by the Foundation, which declares the goals of the State and announces norms of self-definition, organized into articles by letters. The next part 339

Lincy  Mulder  is  an  undergraduate  student  (LLB  Political  Science)  at  Vrije  University.   Molnar, M. (2001). A concise history of Hungary. Cambridge: Cambridge University Press; Lambert, T. (2014). A short history of Hungary. Retrieved from http://www.localhistories.org/hungary.html 341 Csink, L., Schanda, B., & Varga, A. (2012). The basic law of Hungary: A first commentary. National Institute Of Public Administration. Dublin: Clarus Press Ltd. 342 Csink, L., Schanda, B., & Varga, A. (2012). The basic law of Hungary: A first commentary. National Institute Of Public Administration. Dublin: Clarus Press Ltd. 343 Csink, L., Schanda, B., & Varga, A. (2012). The basic law of Hungary: A first commentary. National Institute Of Public Administration. Dublin: Clarus Press Ltd. 344 Csink, L., Schanda, B., & Varga, A. (2012). The basic law of Hungary: A first commentary. National Institute Of Public Administration. Dublin: Clarus Press Ltd. 340

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is the chapter of Freedom and Responsibility containing the provisions on fundamental rights in Roman numerals, which is followed by the part of the structure of the State, in Arabic numerals.345 Without any contributions from other organs, the Hungarian Parliament can adopt and amend the Constitution by two-thirds majority of votes of its members.346 Hungary is party to a number of international human rights agreements, including the European Convention for the Protection of Human Rights and Fundamental Freedoms; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.347 Hungary signed but has not yet ratified Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.348 The Fundamental Law of Hungary adopted the general anti-discrimination clause in 2011.349 Article 15 of the Fundamental Law of Hungary states that Hungary shall guarantee the fundamental rights to everyone without discrimination and in particular without discrimination on grounds of race, colour, sex, disability, language, religion, political or other opinion, national or social origin, property, birth or any other status.350 In addition, Article 8 of the Equal Treatment Act prohibits discrimination on the basis of gender, ethnic origin, race, skin colour, age, mother tongue, disability, state of health, motherhood (pregnancy) or fatherhood, family status, sexual orientation, gender identity, social origin, financial status, religious or ideological conviction, political or other opinion, part-time status or fixed-term employment, membership in an interest representation organization, and any other status.351 Human rights and non-discrimination are protected by both national legislation and international agreements in Hungary. If a person feels that (s)he is treated less favourably on the grounds of any of the protected characteristics in the Equal Treatment Act than any other person in a similar situation, (s)he can contact the Equal Treatment Authority.352+353 This authority is responsible for investigating the complaints filed for the violation of the principle of equal                                                                                                                       Csink, L., Schanda, B., & Varga, A. (2012). The basic law of Hungary: A first commentary. National Institute Of Public Administration. Dublin: Clarus Press Ltd. 346 Csink, L., Schanda, B., & Varga, A. (2012). The basic law of Hungary: A first commentary. National Institute Of Public Administration. Dublin: Clarus Press Ltd. 347 University of Minnesota. (2008). Ratification of International Human Rights Treaties: Hungary. Retrieved from https://www1.umn.edu/humanrts/research/ratification-hungary.html 348 Kádár, A. (2013). Executive summary: Country report Hungary on measures to combat discrimination. Retrieved from http://www.non-discrimination.net/countries/hungary 349 Kádár, A. (2013). Executive summary: Country report Hungary on measures to combat discrimination. Retrieved from http://www.non-discrimination.net/countries/hungary 350 Government of Hungary. (2011). The fundamental law of Hungary. Retrieved from http://www.mfa.gov.hu/NR/rdonlyres/8204FB28-BF22-481A-9426D2761D10EC7C/0/FUNDAMENTALLAWOFHUNGARYmostrecentversion01102013.pdf 351 Government of Hungary. (2003). Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities. Retrieved from http://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.HUN.3-Annex3.pdf 352 Equal Treatment Authority. (2015). Important information on the procedure of the equal treatment authority. Retrieved from http://www.egyenlobanasmod.hu/article/view/the-authority 353 Kádár, A. (2013). Executive summary: Country report Hungary on measures to combat discrimination. Retrieved from http://www.non-discrimination.net/countries/hungary 345

 

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treatment.354 The Authority may also initiate lawsuits with a view to protecting the rights of persons and groups whose rights have been violated; review and comment on drafts of legal acts concerning equal treatment; make proposals concerning governmental decisions and legislation pertaining to equal treatment; inform the public about the situation concerning the enforcement of equal treatment; provide information to those concerned and offer assistance in acting against the violation of the principle of equal treatment; and prepare an annual report to the Parliament on the activity of the Authority and its experiences obtained in the course of the application of the Equal Treatment Act.355 Complaints may be submitted against state and local government organizations; organizations exercising official powers; the Hungarian Army and law enforcement bodies; organizations performing public utility services, institutions providing educational, social, child protection, cultural and health services; voluntary insurance funds; private insurance funds; parties; and all other budgetary agencies.356 The Authority may also process in employment relationships, in respect of the employer; in the course of using state subsidies, in respect of sole traders and partnerships receiving subsidies; in respect of catering and commercial, as well as cultural institutions and institutions established for the purpose of entertainment; and in respect of bidders of contracts or those who invite such persons to tender.357 Whenever the Authority establishes its competence, as a main rule, it shall clarify the facts as part of a trial, where both the plaintiff and the defendant are heard.358 If it is proved in the course of the procedure that the person or organization placed under the procedure violated the principle of equal treatment, the Authority may order that the state of infringement be terminated, forbid the continuation of the violation, order that its final decision declaring the infringement be made public, impose a fine from HUF 50 thousand to HUF 6 million, or decide on the procedural cost in a way that it must be covered by the offending party.359 The Commissioner for Fundamental Rights is a national human rights institution with a broad mandate to investigate fundamental rights violations and to monitor the situation of fundamental rights in Hungary.360 While sexual and gender minorities are not specifically mentioned in its mandate, the category of “the most vulnerable social groups” might be interpreted to include LGBT people as well.                                                                                                                       Equal Treatment Authority. (2015). Important information on the procedure of the equal treatment authority. Retrieved from http://www.egyenlobanasmod.hu/article/view/the-authority 355 Kádár, A. (2013). Executive summary: Country report Hungary on measures to combat discrimination. Retrieved from http://www.non-discrimination.net/countries/hungary 356 Equal Treatment Authority. (2015). Important information on the procedure of the equal treatment authority. Retrieved from http://www.egyenlobanasmod.hu/article/view/the-authority 357 Equal Treatment Authority. (2015). Important information on the procedure of the equal treatment authority. Retrieved from http://www.egyenlobanasmod.hu/article/view/the-authority 358 Equal Treatment Authority. (2015). Important information on the procedure of the equal treatment authority. Retrieved from http://www.egyenlobanasmod.hu/article/view/the-authority 359 Equal Treatment Authority. (2015). Important information on the procedure of the equal treatment authority. Retrieved from http://www.egyenlobanasmod.hu/article/view/the-authority 360 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 354

 

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No appeal lies against the decision taken by the Equal Treatment Authority, the court review of the decision may be requested at the Budapest Metropolitan Public Administration and Labour Court.361 If a person is not satisfied by a decision made by the Equal Treatment Authority, (s)he can lodge an application with the European Court of Human Rights in Strasbourg.362

2.12.2 Equal rights 2.12.2.1 Individual protection of human rights As previously mentioned, the Fundamental Law of Hungary includes a non-discrimination clause and Hungary is a party to a number of international agreements relevant for combating discrimination. There are also laws specifically on the grounds of sexual orientation. Same-sex sexual activity between consenting adults was decriminalized in Hungary in 1961.363 Also, there is equality in the age of consent for same-sex and different-sex sexual acts. Moreover, persecution on the ground of sexual orientation is explicitly recognized in asylum law. The Office of Immigration and Nationality has continuously accepted persecution based on sexual orientation as grounds for qualifying for asylum.364 However, Act No. 80 in asylum law does not recognize a registered partnership as a family relationship. In this regard, the same sex partner of a person that has been granted asylum is not automatically recognized as a family member and, therefore, registered partnership or same-sex cohabitation is automatically excluded from family reunification procedures.365 Hate crimes and hate speech on the grounds of sexual orientation is recognized in criminal law. Section 216 of the Penal Code provides that displays of anti-social behaviour against others or assault towards others for being part, whether in fact or under presumption, of a national, ethnic, racial or religious group, or of a certain societal group, in particular on the grounds of disability,

                                                                                                                      361 Equal Treatment Authority. (2015). Important information on the procedure of the equal treatment authority. Retrieved from http://www.egyenlobanasmod.hu/article/view/the-authority 362 European Court of Human Rights. Questions and answers. Retrieved from http://www.echr.coe.int/Documents/Questions_Answers_ENG.pdf 363 Takács, J., Dombos, T., Mészáros, Gy. and PTóth, T. (2012). Don’t ask, don’t tell, don’t bother: Homophobia and the heteronorm in Hungary. In: L. Trappolin, A. Gasparini and R. Wintemute (Eds): Confronting homophobia in Europe: social and legal perspectives (pp. 79-105.) Oxford: Hart Publishing. 364 European Union Agency for Fundamental Rights. (2008). Legal study on homophobia and discrimination on grounds of sexual orientation: Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/324FRA-hdgso-NR_HU.pdf 365 European Union Agency for Fundamental Rights. (2008). Legal study on homophobia and discrimination on grounds of sexual orientation: Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/324FRA-hdgso-NR_HU.pdf

 

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gender identity or sexual orientation, of aiming to cause panic or to frighten others, is guilty of a felony punishable by imprisonment.366 Moreover, Article 4 of the Employment Directive prohibits discrimination on the basis of sexual orientation. However, Article 22 of the Equal Treatment Act states that the principle of equal treatment is not violated if the differentiation is proportionate, justified by the characteristics or nature of the job and is based on all relevant and legitimate terms and conditions that may be taken into consideration in the course of recruitment; or if the differentiation arises directly from a religious or other ideological conviction or national or ethnic origin fundamentally determining the nature of the organisation, and it is proportional and justified by the nature of the employment activity or the conditions of its pursuit.367 The Equal Treatment Act prohibits discrimination on the grounds of sexual orientation for access to goods and services in Article 30 and in other spheres of life in Article 31.368 However, the constitution does not explicitly prohibit discrimination on the grounds of sexual orientation369. Moreover, there is no national equality action plan which contains measures tackling discrimination on the grounds of sexual orientation.370 Thus, the Fundamental Law of Hungary includes non-discrimination law. However, we find relatively high levels of anti-immigrant attitudes, racism, anti-Semitism and sexism in Hungary.371 The most vulnerable group from the point of view of discrimination is that of the Roma, which constitutes 4–7 per cent of the country’s population.372 Despite some positive legislative changes and significant amounts spent on integration programs, the Roma still face deeply rooted discrimination in education, employment, health care, housing and access to goods and services.373 The Equal Treatment Authority received 1,496 complaints of discrimination in total in 2013, which marks a more than one-and –a-half fold increase over the rate experienced in previous years.374 The Authority launched proceedings on the basis of petitions in 589 cases. Most                                                                                                                       366 Government of Hungary. (2012). Act C of 2012 on the Criminal Code. Retrieved from https://www.academia.edu/4602286/Criminal_Code_of_Hungary_2012 367 Government of Hungary. (2003). Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities. Retrieved from http://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.HUN.3-Annex3.pdf 368 Government of Hungary. (2003). Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities. Retrieved from http://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.HUN.3-Annex3.pdf 369 ILGA Europe. (2014). Legal summary in details on Hungary. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/hungary/legal 370 ILGA Europe. (2014). Legal summary in details on Hungary. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/hungary/legal 371 Zick, A., Küpper, B., & Hövermann, A. (2011). Intolerance, prejudice and discrimination: A European report. Retrieved from http://library.fes.de/pdf-files/do/07908-20110311.pdf 372 Kádár, A. (2013). Executive summary: Country report Hungary on measures to combat discrimination. Retrieved from http://www.non-discrimination.net/countries/hungary 373 Kádár, A. (2013). Executive summary: Country report Hungary on measures to combat discrimination. Retrieved from http://www.non-discrimination.net/countries/hungary 374 Equal Treatment Authority. (2014). Report on the activity of the Equal Treatment Authority in 2013 and on the experiences gathered in the context of applying Act CXXV of 2003 on Equal Treatment and the Promotion of

 

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complaints, 119, were directed towards the violation of equal treatment with regard to the petitioners’ disability.375 11 complaints were with regard to the petitioners’ sexual orientation.376 Findings of a recent study by Takács and Szalma indicated that about half of their LGBT sample experienced discrimination, of which 72% argued that it was on the ground of sexual orientation.377 The most often mentioned forms of discrimination included verbal harassment (63%), followed by humiliation (49%), threats of violence (28%) and public humiliation (24%).378

2.12.2.2 Recognition of relations Hungary has adopted constitutional provisions defining marriage as the union of a husband and wife, which means that Hungary limits marriage to opposite-sex couples379. Article L of the Hungarian Constitution provides that “Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the nation’s survival”.380 Also, Article L provides that “Hungary shall encourage the commitment to have children”. Hungary grants constitutional protection to marriage as the union of a husband and wife while providing marriage-related benefits to same-sex couples.381 In July 1, 2009 the Act on Registered Partnership went into force which grants same-sex couples the opportunity to legalize their relationships with a registered partnership.382 This institution, with a few exceptions, grants samesex couples all the rights and obligations that come with marriage. The same rules govern the property and inheritance relations of registered partners, and registered partners are entitled to all Equal Opportunities. Retrieved from http://www.egyenlobanasmod.hu/app/webroot/files/img/articles/8745bda54b1ed94d06475af17cb3a40f/EBH201 3_EN_20141021.pdf 375 Equal Treatment Authority. (2014). Report on the activity of the Equal Treatment Authority in 2013 and on the experiences gathered in the context of applying Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities. Retrieved from http://www.egyenlobanasmod.hu/app/webroot/files/img/articles/8745bda54b1ed94d06475af17cb3a40f/EBH201 3_EN_20141021.pdf 376 Equal Treatment Authority. (2014). Report on the activity of the Equal Treatment Authority in 2013 and on the experiences gathered in the context of applying Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities. Retrieved from http://www.egyenlobanasmod.hu/app/webroot/files/img/articles/8745bda54b1ed94d06475af17cb3a40f/EBH201 3_EN_20141021.pdf 377 Takács, J., Dombos, T., Mészáros, Gy. and PTóth, T. (2012). Don’t ask, don’t tell, don’t bother: Homophobia and the heteronorm in Hungary. In: L. Trappolin, A. Gasparini and R. Wintemute (Eds): Confronting homophobia in Europe: social and legal perspectives (pp. 79-105.) Oxford: Hart Publishing. 378 Takács, J., Dombos, T., Mészáros, Gy. and PTóth, T. (2012). Don’t ask, don’t tell, don’t bother: Homophobia and the heteronorm in Hungary. In: L. Trappolin, A. Gasparini and R. Wintemute (Eds): Confronting homophobia in Europe: social and legal perspectives (pp. 79-105.) Oxford: Hart Publishing. 379 Durham, W.C., Smith, R.T., & Duncan, W.C. (2014). A comparative analysis of laws pertaining to same-sex unions. Available http://ssrn.com/abstract=2409282 380 Hungary’s Constitution of 2011. Retrieved from https://www.constituteproject.org/constitution/Hungary_2011.pdf 381 Durham, W.C., Smith, R.T., & Duncan, W.C. (2014). A comparative analysis of laws pertaining to same-sex unions. Available http://ssrn.com/abstract=2409282 382 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide

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the tax, social, labour and immigration benefits that are granted to spouses.383 The aim of this new institution is to create a family law institution similar to marriage for same-sex couples. However, there are some differences between marriage and a registered partnership: partners cannot take each other’s name; no adoption; no artificial insemination; no presumption of paternity; and registered partnership can be dissolved by a public notary.384 Registered and unregistered cohabitation is available to both same-sex and opposite-sex couples.385 Differences between marriage and registered partnership are the most significant in relation to raising children.386 The law does not make it possible for both registered partners to become legal parents of a child.387+388 However, the law does not exclude the possibility of individual adoption, so even someone living in registered partnership or cohabitation can adopt.389 The difference from joint adoption is that in this case only the single adopter becomes the legal parent of the child. The Family Code, however, provides that preference has to be given to adoption by a married couple, so in practice it is very unlikely that a gay or lesbian person will be able to adopt.390 Moreover, the legislation does not allow for a child to have two legal parents of the same sex.391 This means that registered partners cannot adopt each other’s child(ren), nor adopt a child left by his or her parents. This also means that a mother’s registered partner will not be recognized as the parent of the child.392 Finally, lesbians living in registered partnership may not participate in artificial insemination.393+394 According to the Act on Healthcare, artificial insemination is available only for married or different-sex cohabiting couples, infertile single women, or single women who are likely to                                                                                                                       383 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 384 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 385 ILGA Europe. (2014). Legal summary in details on Hungary. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/hungary/legal 386 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 387 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 388 ILGA Europe. (2014). Legal summary in details on Hungary. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/hungary/legal 389 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 390 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 391 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 392 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 393 ILGA Europe. (2014). Legal summary in details on Hungary. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/hungary/legal 394 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide

 

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become infertile soon due to their age.395 Lesbian women living in registered partnership or cohabitation, or fertile single women are not allowed to participate.396 The new Civil Code would allow cohabiting partners to adopt each other’s child(ren), but this option would not be available for registered partners.397 They would have to divorce, adopt and re-register if they want to adopt their partner’s child.398

2.12.3 National policy Under the former government, Hungarian policy was comparatively progressive for the region: the anti-discrimination legislation introduced in 2003, for example, went far beyond the demands from the EU, extending the legislation to include not only discrimination in the workplace but also in education, housing, and access to social benefits.399 However, the situation changed in 2010 when the most well-known radical right party Jobbik entered the parliament in 2010 with a large share of the vote.400 The new conservative government significantly cut back on the rights of LGBT people.401 In 2011, they adopted a new Constitution that defines marriage as a union between a woman and a man and limits the notion of family to spouses and parent-child relationships.402 They adopted legislation on the content of education which does not include LGBT issues in school curricula, and introduced family education as a compulsory topic with homophobic and transphobic undertones.403 Jobbik has openly called for abolishing registered partnership.404 Also, Jobbik has proposed bills both in parliament and in cities to ban the “propagation of disorders of sexual behaviour – especially sexual relations between members of the same sex”405. As a result of more visible nationalist policies, LGBT persons in Hungary experience increased levels of homophobia.406 In a focus group study from 2012, the authors claim that since Jobbik entered the parliament in                                                                                                                       395 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 396 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 397 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 398 Hátter Society. (2011). Registered partnership: Guide to gay and lesbian couples. Retrieved from http://en.hatter.hu/publications/registered-partnership-guide 399 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 400 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 401 Háttér Society. (2015). LGBT life in Hungary. Retrieved from http://en.hatter.hu 402 Háttér Society. (2015). LGBT life in Hungary. Retrieved from http://en.hatter.hu 403 Háttér Society. (2015). LGBT life in Hungary. Retrieved from http://en.hatter.hu 404 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 405 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 406 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf

 

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2010, “directly racist and homophobic forms of public communication started to increase”407. LGBT respondents express the opinion that the political system keeps radicalising, and one of them says that “the change of government swept away women’s rights and gay rights from the table”408. Moreover, in 2010, Fidesz contested the elections in coalition with the Christian Democratic People’s Party (KDNP).409 With a majority of two thirds, Fidesz can itself change laws in parliament. The two mainstream right wing parties, Fidesz and KDNP, are openly homophobic, especially KDNP who very aggressively push their conservative family policy agenda.410 Some support has come from a small political party called Szolidaritás, which has its base in union activism, and has participated in demonstrations where LGBT rights were discussed.411 Besides the previously mentioned existing criminal law framework there are no policy measures in place to counter homophobia.412 There is no national strategy or action plan against discrimination based on sexual orientation, and neither is there a general anti-discrimination / equal opportunity / human rights policy.413 Such strategies exist for most other equality grounds. There has been no awareness raising campaigns targeting homophobia, except for a campaign concerning sexual orientation in the workplace organized by the European Commission.414 Also, the government does not support any preventive or awareness raising measures concerning homophobia in the fields of education, youth or sport.415 Finally, the National Cooperation Fund distributing 21 billion forints (70 million euros) a year among NGOs in Hungary have supported no LGBT-related projects.416

                                                                                                                      Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 408 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 409 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 410 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 411 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 412 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 413 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 414 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 415 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 416 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 407

 

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A Working Group on the Rights of LGBT People was set up in December 2012 within the newly established Human Rights Roundtable to consult with NGOs working in the fields of human rights, including LGBT rights.417 The participating LGBT NGOs have proposed several concrete measures to be implemented, however, none of these have been implemented so far.418 There are a few NGO’s in Hungary that have been working on the topic of homosexual rights. Háttér Society is one of the largest and most active organizations in Hungary that is working on the topic of homosexual rights.419 Its aims are to protect the human rights of lesbian, gay, bisexual, transgender people and to reduce the fear and ignorance about homosexuality through better integration of LGBTQI people into society at large.420 Háttér works towards these aims by calling attention to the problems faced by LGBTQI people; lobbying against discriminative laws and promoting legislation protecting LGBTQI people; providing support services; encouraging the self-organization of LGBTQI communities; and preserving and spreading LGBTQI heritage and culture.421 They conduct survey research among LGBT people concerning their experience of homophobic and transphobic violence. Also, they maintain an online reporting interface where cases of violent attacks can be reported.422 Patent Association is a women’s and sexual minorities’ rights NGO.423 They published a report based on 15 cases of discrimination and violence against LGBT people in 2007.424 Labrisz Lesbian Association is an organization that is active in community building, strengthening the self-acceptance and visibility of lesbian and bisexual women, and creating a discourse with society through publications, information and a school program.425 The school program visits secondary schools and universities, where they explain important concepts, discuss issues and answer students’ questions about sexual orientation, gender identity and the rights, lives and difficulties of LGBT people.426 The participating organizations report having

                                                                                                                      Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 418 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 419 Háttér Society. (2015). About us. Retrieved from http://en.hatter.hu/about-us 420 Háttér Society. (2015). About us. Retrieved from http://en.hatter.hu/about-us 421 Háttér Society. (2015). About us. Retrieved from http://en.hatter.hu/about-us 422 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 423 Patent. (2015). Üdvözöljük a PATENT Egyesület honlapján. Retrieved from http://patent.org.hu 424 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 425 Labrisz Lesbian Association. (2015). Labrisz Lesbian Association. Retrieved from http://www.labrisz.hu/english 426 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 417

 

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difficulties in accessing schools, some of which claim that under the current political climate such a program is not welcomed.427

2.12.3.1 Public opinion regarding homosexuals and same-sex couples. Hungary is one of the countries in Eastern Europe that has the most tolerant legislation towards same-sex couples.428 However, as previously mentioned, intolerant radical right parties are very influential in everyday politics.429 Moreover, the level of acceptance towards homosexuality among the population in Hungary is one of the lowest among European countries.430 According to a 2003 survey, more than one-third of Hungarian respondents regard homosexuality as an illness431. Also, about two thirds of the population reject same-sex marriage and find homosexuality immoral.432 Thirteen per cent of Hungarians felt that homosexual couples should be allowed to adopt children throughout Europe.433 According to Hungarian research findings in 2003, 3.5 per cent of Hungarian respondents viewed homosexuality as a crime; 29.8 per cent thought homosexuality was a private matter of the individual; and 14.1 per cent considered homosexuality to be a form of deviant behaviour.434 About 10.5 per cent of respondents thought that choosing a same-sex partner was a basic right.435 In Hungary almost 75 per cent of the population identifies as religious; 55 per cent belong to the Catholic Church and 16 per cent to the Reformed Church.436 Most churches are openly homophobic and the Catholic Church has significant influence on right-wing political parties.437                                                                                                                       427 Magyar LMBT Szövetség. (2014). Submission of the Hungarian LGBT Alliance for the ECRI field visit on LGBT rights in Hungary. Retrieved from http://www.lmbtszovetseg.hu/sites/default/files/mezo/file/lmbtszov_ecrifield_2014jun.pdf 428 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 429 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf 430 Takács, J., Dombos, T., Mészáros, Gy. and PTóth, T. (2012). Don’t ask, don’t tell, don’t bother: Homophobia and the heteronorm in Hungary. In: L. Trappolin, A. Gasparini and R. Wintemute (Eds): Confronting homophobia in Europe: social and legal perspectives (pp. 79-105.) Oxford: Hart Publishing. 431 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 432 Zick, A., Küpper, B., & Hövermann, A. (2011). Intolerance, prejudice and discrimination: A European report. Retrieved from http://library.fes.de/pdf-files/do/07908-20110311.pdf 433 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 434 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 435 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 436 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf

 

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Gay people that participate in religious communities reported on various forms of discrimination they experienced within their community, including hostility or even being ostracized, homophobic messages of certain religious doctrines, and prayers said for the cure of their homosexuality.438 According to a recent survey, more than one-third of LGBT respondents experienced discrimination in the labour market, and about 50 per cent experienced prejudice and discrimination in school.439 However, there are differences in personal experiences of discrimination. Lesbian women encountered more discrimination in their own family and in the Hungarian legal system than gay men, while gay men suffered more from discrimination in elementary and secondary schools.440 Respondents aged 40 or older more often experienced discriminatory practices at their workplace than younger ones.441 People with higher educational background and those living in Budapest reported more discriminatory experiences in the legal system, in the media, in political organizations or in public demonstration than people with lower education and those living in the countryside.442 Respondents living in Budapest encountered more discrimination in health care institutions, religious communities, civil organisations (NGOs), and less discrimination on behalf of their elementary school teachers than those living in the countryside.443 Personal accounts of discrimination provided by our LGBT respondents indicated that in the main scenes of social recognition – for example, in schools, workplaces, friends’ circles, religious communities and in the media – heterosexuality seemed to be a precondition for acceptance and appreciation.444 Respondents also referred to the different degrees of acceptance and rejection of LGBT people by society.445 According to both LGBT and heterosexual participants, individual lesbians or gay men are easier to accept than a same-sex

437 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 438438 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 439 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 440 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 441 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 442 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 443 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 444 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 445 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf

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couple or a larger number of representatives of a social group, for example, at the Pride marches.446 Thus, there is widespread rejection of homosexuals and same-sex couples in Hungary, which is seen in both the public and private sphere.447+448

2.12.4 Summary The Fundamental Law of Hungary includes a non-discrimination clause, which states that Hungary shall guarantee the fundamental rights to everyone without discrimination. Discrimination based on the ground of sexual orientation is restricted in the Equal Treatment Act. However, the current government of Hungary is not in favour of these existing laws. To the present day, same-sex couples are entitled to: registered partnership and cohabitation.

                                                                                                                      446 Danish Institute for Human Rights. (2009). The social situation concerning homophobia and discrimination on grounds of sexual orientation in Hungary. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/377FRA-hdgso-part2-NR_HU.pdf 447 Zick, A., Küpper, B., & Hövermann, A. (2011). Intolerance, prejudice and discrimination: A European report. Retrieved from http://library.fes.de/pdf-files/do/07908-20110311.pdf 448 Hannus, M. (2012). Threatening visibility: Radical right homophobes in European Parliaments. Retrieved from http://expo.se/www/download/res_threatening_visibility_EN_w_1.2.pdf

 

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2.13 Ireland Witten by Alexia-Nefeli Douma

2.13.1.1 Introduction Attitudes in Ireland towards lesbian, gay, bisexual, and transgender (LGBT) people have differentiated a lot in the years since the early 1990s. LGBT rights have been increasingly gaining momentum; same-sex couples now receive equal protection with respect to the right to marry of heterosexual couples. Nevertheless, there are still some sexual groups that undergo severe criticism. There is a growing tendency expressed by the official Governmental stance on the matter greatly over the past two decades. 1993 was a landmark year for the persecuted LGBT community. The so-called “buggery” offence was abolished from the Irish Penal Code, as a result of perpetuated social and political campaigns. (i.e. Campaign for Homosexual Law Reform). In 1983 the Supreme Court faced cases challenging the constitutionality of these laws but was unsuccessful in striking a fair balance between the interests of the state and individual liberties. The court in its reasoning alluded to the “Christian and democratic nature of the Irish State”, declaring that “buggery” was to the benefit of preserving public health and the institution of marriage. In 1988 the European Court of Human Rights fearlessly argued that Irish law contravened the European Convention on Human Rights.449 The court ruled that the criminalisation of male homosexuality stood in full breach of Art. 8 of the Convention, that establishes the right to privacy in personal affairs. In 2010, the Irish House of Representatives and the Senator recognized civil partnerships between homosexual couples through the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, with the first civil partnerships being concluded in early 2011. In 2015 according to public surveys, 78% of the Irish population stands in support of same-sex marriage and 71% concurs to the regulation of adoption on behalf of same-sex couples.450

2.13.1.2 Marriage Actually the referendum held in May 2015 called for an amendment to the 2004 Civil Registration Act, adding the wording "Marriage may be contracted in accordance with law by two persons without distinction as to their sex" to the Irish constitution. Before the 2015 referendum, marriage in Ireland is currently regulated by the Civil Registration Act 2004, according to which marriage would be null and void if both parties to a marriage are of the same sex. *Alexia-Nefeli Douma is a graduate LLB Law student at the Aristotle University of Thessaloniki 449 450

“Norris v. Ireland– 10581/83 [1988] ECHR 22 (26 October 1988)”, Worldlii.org. “Family Values: 54% would be willing to help a relative die”, Irish Times. 21 March 2015.

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Moreover, the Irish justice anticipated cases regarding the breach of rights of transsexual persons suffering from congenital disabilities. Applicant invoked Art. 8 ECHR, whereas the Court noted that Art. 12 ECHR is equally prescribed in the Convention. The judges’ estimate was that the right to marry is not absolute, thus, it needs to be evaluated in the context of several other rights including the rights of society.451 Therefore, the state is entitled to hold the view 452which is espoused and evident from its laws. Similarly, in the famous Goodwin case, the ECtHR held that the UK had abridged the rights of a transgender woman, namely her right to marry. Applicant contested the wide margin of appreciation the Irish state enjoys, maintaining a rather reproachable stance towards the legislative choices made until then. Eventually, the Court ascertained the breach of Art. 8 and acknowledged the positive obligation of the state to adopt measures towards its fostering.453 Sinn Fein, along with the Labour Party and the Green Party supported the marriage for same-sex couples.454

2.13.1.3 Civil partnership and Discrimination protections The Civil Partnerships Bill 2009 underwent severe criticism as it enshrined indirect discriminations with regards to separate contractual arrangements with greater privileges for homosexual couples. A better era towards the equalization of LGBT to heterosexual couples’ rights was initiated through the adoption of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act in 2010. The latter provided homosexual couples with rights and responsibilities similar, but not equal to, those of civil marriage, such as providing for witness testimony before the court, tax amendments, and so on.

2.13.2.1 Background of the Recognition of same-sex unions in the Republic of Ireland In the early 2000s, the Irish Government ordered for a reform through re-examining the Citizens’ Rights and Duties. Qualifying Cohabitees were treated as homosexual or heterosexual unmarried couples in relationships of 2 or 3 years that bore the characteristics of relationships within marriage. A constitutional reform occurred in the years that followed, pertaining to the relevant provision of the Irish legislation, namely arts. 40.3, 41 and 42. Art. 41 in particular, placed emphasis on the

Foy v. An t-Ard Chlaraitheoir & Ors [2002] IEHC 116 (9 July 2002), available at www.bailii.org. Christine Goodwin v. the United Kingdom, 22 EHRR 123, 27 March 1996. 453 ECHR Portal HTML View, available at www.cmiskp.echr.coe.int. 454 “Press releases » Media centre » The Labour Party”, available at www.labour.ie, 7 May 2009. 451 452

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protection of marriage, establishing a positive obligation for the state to act as the depositary of the aforementioned institution. In late 2006, the Irish Government recommended a civil partnership scheme that would be as practical to provide concrete solutions to a plethora of issues likely to incur. A legal presumption of partnership for couples that had already been cohabiting for three years was recommended, as well. What is more, a wide range of statutory bodies had issued reports endorsing the recognition of homosexual and de facto heterosexual relationships. The National Economic and Social Forum (NESF) ignited the aforesaid attempt by publishing related reports on the implementation of Equality policies for LGBT people. The Human Rights Commission presented a thorough comparative analysis on the quality of life of same-sex couples within Europe, along with the Irish Council for Civil Liberties, which has indexed forms of discriminatory treatment vis-à-vis the LGBT community.

2.13.2.2 Recognition of foreign partnerships The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 outlined certain criteria as to the recognizable relationships that can be recognised: permanent relationships exclusive in nature and registered according to the provisions of the foreign jurisdiction.

2.13.2.3 The “Yes” Campaign The largest campaigning movement in favour of a “Yes” vote was the pro-marriage Yes Equality group that denied allegation as to accumulating funds from private institutions linked to American interests, such as Atlantic Philanthropies. It is a social movement that is merely funded through its supporters organising fundraising initiatives throughout Ireland. In addition they ran a crowdfunding campaign to raise monies for poster, bus tour and booklet campaigns. Surprisingly enough, traditionally conservative parties such as Fine Gael (the main party in government)455 and Fianna Fail (the party of Irish rural conservative Catholics) stood in favour of a YES vote.456 Initially, Fine Gael was sceptical vis-à-vis the issue, but she eventually agreed to a vote after Ireland’s Constitutional Convention recommended one. It had become clear already that gay marriage was a popular issue, and the Fine Gael Minister for Health assisted in giving political impetus to the pro marriage equality campaign. Enda Kenny, the Irish Taoiseach (prime minister) was the one that actually ignited the entire procedure for the Constitutional Reform.457                                                                                                                       455 “VOTE YES | Marriage Equality Referendum 22 May 2015 | Fine Gael” & “Fine Gael launches campaign for Yes vote in Marriage Equality Referendum”, available at “www.finegael.ie”. 456 McGee H., “Chastened Soldiers of Destiny begin the march to renewal and reform”, The Irish Times, 5 March 2012. 457 “Referendum”, RTÉ News, 19 February 2015.

 

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Irish left leaning parties were, unsurprisingly, more unequivocal in their support for gay marriage. The Labour Party prioritized the issue during coalition negotiations. David Norris, the Irish senator famous for the case of Norris v. Ireland decided by the European Court of Human Rights (ECHR) in 1988, in which David Norris successfully charged that Republic of Ireland's criminalization of certain homosexual acts between consenting adult men was in breach of Article 8 of the European Convention on Human Rights, was one of the principal supporters of the YES campaign, along with other persons, former Government Ministers and other Irish celebrities. The stance of Amnesty International was of primordial significance to the prereferendum campaign.

2.13.2.4 The “No” Campaign The “No” campaign had been accused of receiving funding from rightwing Christian groups in the US. One of the most fervent supporters of the “No” vote is the Catholic Church, since a positive answer to the referendum would mark another defeat for the prior and its political power and influence over Irish population. It is believed that one of the strongest supporters in the US is the National Organization for Marriage (NOM). A spokesperson for the aforementioned organization denied the channeling of funds to any of the three main opposition groups to gay marriage during the campaign. It is rather true that four Irish Catholic bishops released pastoral letters a couple of days before the referendum urging their parishioners to vote “No” ,whilst these statements were read as a preach during the Sunday mass.458 The Catholic Church is facing a strong anticipatory movement. It used to play a dominant role in shaping sexual and social mores in the country. The state was inextricably interwoven with the Church, letting the latter debilitate several policies vis-à-vis issues of sexuality because it wanted to preserve certain dogmatic perceptions.459 Nevertheless, in the last decade scandals about sexual abuse have arisen that caused a calamitous decline in the Church’s popularity and influence over the public authorities.

2.13.2.5 Result of the Referendum It was the first time a popular vote led to the legalization of same-sex marriages. Same-sex marriages have been incorporated in the Irish Legislation and thus, the respective provision has been enforceable since 16 November 2015460. The bill was transformed into law through the presidential signature in late August 2015. Notwithstanding the unprecedented success of the 458 Harkin G., “Catholic Bishops urge “No” vote in Republic of Ireland’s marriage equality referendum”, available at www.belfasttelegraph.co.uk/news/republic-of-ireland/catholic-bishops-urge-no-vote-in-republic-of-irelandsmarriage-equality-referendum-31192705.html , 4 May 2015. 459 McEnroe J., “Marriage Equality Referendum poll: Bets surge on No vote win”, available at “www.irishexaminer.com/ireland/no-campaigns-posters-under-scrutiny” , 4 May 2015. 460 “Same-sex couples can marry from today”, RTE News, Radio Teilifis Eireann, 16 November 2015.

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“yes” side (62%), there were two legal challenges before the Court of Appeal, but were soon ruled out as inadmissible. The legendary victory of the LGBT community led to a whole new perception of same-sex marriages and rights of homosexual persons. According to the Referendum Commission: two people of the opposite sex or the same sex are now able to marry one another, whilst the Constitutional Status of marriage will not alter. Heterosexual and homosexual marriages are of the same quality standards and identical status vis-à-vis Irish law, especially when it comes to Family Law protection and provision of special privileges. Following the referendum, the Catholic Church had already lost the allegiance of large sections of Irish youth due to its traditional preaching on sexuality and marriage. Archbishop Diarmuid Martin stated that he appreciates how homosexual men and women feel on this day, adding that “it’s a social revolution that's been going on - perhaps in the Church people have not been as clear in understanding what that involved”, placing special emphasis on the review of the current norms that need to take place on behalf of the Irish Church; “It's clear that if the referendum is an affirmation of the views of young people, the Church has a huge task in front of it,. It really needs to do a reality check”, Archbishop Diarmuid Martin noted.461

2.13.3 Conclusion It is noteworthy that the- inextricably-related-to-religion Irish society has managed to successfully overcome the obstacles through the functioning of the LGBT and other cluster groups that worked as a lever to achieve renewal. Being the first country where same-sex marriage was legalized by a popular vote, Ireland is an example of the ongoing change of the views of societies around Europe.

Galeazzi G. & Tornielli A., “Same-sex marriage: The outcome of the referendum is the result of a cultural revolution”, available at www.vaticaninsider.lastampa.it, 23 May 2015.

461

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2.14 Italy Written by Jordi Martínez i Carrasco462

2.14.1 General principles of jurisdiction It might be said that the city of Rome determined to a great extent the identity of Italy. Italian unity as a country was considered to be completed, not in 1861 when the Kingdom was established, but in 1870 when Rome was conquered. The emergence of Italian political unity was the result of the cooperated efforts of a liberal political elite in the whole of Italy and the military leadership of generals. This happened under the authority of Vittorio Emmanuele II, King of Sardinia.463 The Statuto Albertino which had been granted to Sardinia, remained in force as the constitution of the Kingdom. Some important elements of this constitution were the recognition of fundamental rights and ministerial responsibility towards Parliament. After the authoritarian dictatorship of Mussolini, the Grand Council of Fascism turned against Mussolini, and the King dismissed him in 1943. The fascist organizations were dissolved and fundamental rights were restored. However, most of Italy was occupied by German troops. In the liberated part of the country, the (re-established) political parties united in a committee which took on the role of a provisional representative body. In June 1946, a referendum was held about the form of government and elections were held for the Assemblea Costituente. The Italian Republic, as it was constituted in 1947, made a dramatic effort to break with this authoritarian past. The recognition of fundamental rights, a firmly anchored role for the courts, and a combination of parliamentary democracy and direct democracy were supposed to ensure that Italy would acquire a democratic political structure. Nonetheless, it suffered several deep crisis which lead to some crucial reforms after 1990. The recasting of the electoral system, and the political reshuffling which the riforme of the 1990s had stimulated also set off other far-reaching changes. Alongside stronger action against organised crime, economic reforms which made it possible for Italy to participate in the introduction of the Euro, and the strengthening of the judiciary, the shift of the politicaladministrative focus to the regions is significant. In 2001/2003, Italy has as a result evolved into a state structure with federal features. By Constitutional Law of 18 October 2001, No. 3, Title V of Part II of the Constitution was drastically revised. This is the most radical revision of the Constitution since its promulgation. With this, the federal characteristics of the organization of the state are considerably strengthened, even though an unequivocal choice has not been made. This is apparent from the 462

Jordi  Martínez  i  Carrasco  is  an  undergraduate  student  (LLB  Law  and  LLB  Political  Science)  at  the  University   of  València  (at  the  time  an  exchange  student  at  Utrecht  University)   463 L. Prakke; C. Kortmann. Constitutional Law of 15 EU Member States. Kluwer. 2004. Deventer, the Netherlands. P.481.

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fact that the principle of the decentralized state laid down in Article 5 has not been reformulated, while the entirely revised Article 114 puts the central state authorities on the same level as the decentralized public bodies.464 The co-existence of these provisions of the Constitution is often seen as an indication that the Italian government system is somewhere in the middle between a unitary state and a federal one. The Italian Republic does not organize itself as a classic state, which attributes powers from the center to the ‘lower’ authorities, nor as a federal state built up of federated states or provinces, by whatever name, in which these individual ‘states’ are themselves unitary states vis-à-vis the federation. It is not only the regions, as a kind of federated states, but also other bodies which have a constitutionally established independent identity. Thus the title of this section refers to Italy, not as a decentralized state (which might imply that the center decides which competences it keeps for itself, and which it does not keep) but as a noncentralized state. According to the case-law of the Constitutional Court, the central and regional authorities are under the obligation to cooperate faithfully (principio di leale collaborazione). The 1947 Constitution465 reflects the aim to found the Italian Republic on the basis of the principles of a democratic and social state based on the rule of law. This already appears from the structure of the Constitution, which opens with a series of ambitiously formulated ‘fundamental principles’ (Arts. 1-12). The core of the constitutional enshrining of fundamental rights is made up of Articles 2 and 3. Article 2 states that the Republic ‘recognises and guarantees the inviolable rights of the person’ and requires the fulfilment of the ‘duties of political, economic and social solidarity’. Article 3 expresses the two sides of the principle of equality (equality before the law and the obligation upon the State to remove economic and social obstacles to the realization of freedom and equality of all citizens). There is no mention of same-sex couples’ rights within this list of fundamental rights. The guarantee of fundamental rights is supported in the Constitution by the establishment of the Constitutional Court. The review of laws and legislative decrees against the Constitution by this Court is important for the guarantee of fundamental rights. The Court decided in its very first decision (of 14 June 1956, No. 1) that even legislation that was enacted before the Constitution had been entered into force may be reviewed against the Constitution. It is not possible for individuals to access the Constitutional Court directly. Therefore, individuals cannot claim their constitutional rights directly before this Court. In case of violation, they must claim their rights on the basis of laws and acts which develop the constitutional provisions before ordinary courts. The judge is obliged to provide a conform interpretation of such a law in line with the Constitution. If this is not possible, he may refer to the specific law or act of the Constitutional Court for its review. The giudizio incidentale di costituzionalità is activated by the judge of the case in                                                                                                                       464 Article 114 Italian Constitution: ‘The Republic is composed of the Municipalities, the Provinces, the Metropolitan Cities, the Regions and the State. Municipalities, Provinces, Metropolitan Cities and Regions are autonomous entities having their own statutes, powers and functions in accordance with the principles laid down in the Constitution.’ 465 Costituzione della Repubblica Italiana, promulgated on the 27th December 1947, and which entered into force on the 1st January 1948.

 

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an ordinary court on the basis of his/her decision, even if the parties have not asked anything about the constitutionality of the law or act. Insofar as the Constitution reserves further rules concerning fundamental rights to statutory regulation, a distinction may be made between ‘riserva di legge’ (for example Art. 13(2) Cost. On personal liberty), in which case delegation is not permitted, and ‘riserva della legge’ (for example, Art. 23 Cost. On obligations of a personal or a financial nature), in which case delegation is allowed. In the academic literature, the wording of Article 2 ‘inviolable human rights’ has been used to derive an argument for the recognition of horizontal effects of classic fundamental rights. Finally, Italy is a party to all the main treaties for the protection of human rights, including the ECHR and the revised European Social Charter of 3 May 1966, ratified by Law of 9 February 1999, No. 30.

2.14.2 Equal rights 2.14.2.1 Individual protection/equal rights The main concerns with regard to discriminatory problems in Italy are the focus on the treatment of irregular immigrants (most of them reach the country by sea) and the Roma people. According to the Human Rights Watch (HRW), tensions appeared in some communities hosting reception centers, including in Rome in November when authorities removed 45 migrant children from a center after neighborhood residents protested violently.466 Although undocumented entry and stay was decriminalized in April; it remains an administrative offense. The European Commission initiated enforcement action against Italy during 2014 over its discriminatory segregation of Roma in substandard, official camps. Roma people living in informal settlements were subject to serial evictions. Moreover, in July 2014, the UN Working Group on Arbitrary Detention urged measures to end over-incarceration and disproportionate use of pretrial detention against foreigners and Roma. Also Amnesty International points out the government failure to implement the National Strategy for the Inclusion of Roma, especially with regard to adequate housing, in its annual report.467 With regard to the discrimination on the ground of sexual orientation, data from the UNAR (Italian National Office against discrimination) Contact Center between 2010 and 2012 show an increase of reports, from less than 40 cases of discrimination in 2010 to proximately 150 in 2012.468 This can also be explained by the fear to report or to talk about these discrimination                                                                                                                       Human Rights Watch. World Report 2015. Italy. Sevel Stories Press. New York. 2015. Amnesty International Report 2014/2015. The State of the World’s Human Rights. Amnesty International Ltd. London. 2015. P. 203. 468 Internet advanced promotional tools application for increasing awareness of social exclusions movement: Sexual bias in Italy. Netaware. National report. University of Economics in Katowice. Available at: http://netaware.ue.katowice.pl/wpcontent/uploads/2014/06/Italy-Sexual-bias-exclusion.pdf [accessed on the 8th May 2015]. 466 467

 

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cases. According to the European Agency for Fundamental Rights, 64 % of LGTB people suffered any aggression or threat due to their sexual orientation in Italy in 2013 and 82 % of them did not report the aggression before the police on the basis of lack of subjective importance, mistrust the police, fear of reprisal by the author or embarrassment for revealing their sexual orientation.469 Nevertheless, the Italian legal system lacks documents, statistics and case law concerning discrimination on basis of sexual orientation.

Source: UNAR Contact Center (2014), classifies cases in the fields: Mass Media, Public Life, Services Provision from Public Bodies, Work, Home, Free Time, Services Provision from Public Establishments, School and Education, Financial Services Provision, Law Enforcement Agencies, Public transport and Health.

Although the lack of official statistics, proofs of discrimination in this area are various and can be related to the general aspects of the life, like for example education and employment. In these circumstances the discrimination affected their normal life.470 According to a national report, among the citizens between 18 and 74 years, 61.3% believe that homosexuals are heavily or fairly discriminated.471 Various discriminations affect the LGBT people in their daily life. With regard to employment, people with the same skills and qualifications, in a large proportion of respondents homosexuals actually have fewer opportunities than others to get a job (49.6%) or getting a promotion (55%). As to the education system, data shows that in Italy 24% of LGB persons have been or are discriminated at school or university because of their sexual orientation.472

                                                                                                                      469 Available at: http://elpais.com/elpais/2014/09/28/media/1411922281_131655.html [accessed on the 8th May 2015]. 470 Internet advanced promotional tools application for increasing awareness of social exclusions movement: Sexual bias in Italy. Netaware. National report. University of Economics in Katowice. p. 3. 471 M. Cartabia (2008) Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation in Italy, FRALEX. 472 Internet advanced promotional tools application for increasing awareness of social exclusions movement: Sexual bias in Italy. Netaware. National report. University of Economics in Katowice. p. 4.

 

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According to national data provided by ISTAT (National Institute for Statics), 53.7% of respondents homosexual / bisexual has been discriminated against in one of the contexts analysed in the course of their lives. It analysed different contexts in which the discrimination took place: seeking a home, relationships with neighbours, within the health service, in local public office or public transport or at school.

Unit: 100 homosexual / bisexual Sources: ISTAT (2011)

In overall, according to the Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe 2013, in Italy, 73% of LGBT people have been discriminated at least once in their life. School and family are the most common settings for such a discrimination.473 The discrimination problems on the ground of sexual orientation that currently exist in Italy will be assessed by analysing the situation in different contexts: freedom of assembly, the protection within Criminal Law, labour market, education, health-care system, sports and the asylum regime.

2.14.2.1.1

Freedom of assembly

According to the European Union Agency for Fundamental Rights, there have been no reports from Italy regarding the obstruction of the right to freedom of assembly. However, calls for improving the rights of LGBT persons have been met with negative responses from some politicians and representatives of religious institutions or groups.474 As a matter of example, in ILGA-Europe. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe 2013. Available at: http://www.ecoi.net/file_upload/90_1369137411_ilga-europe-annual-review-2013.pdf. 474 FRA. Homophobia and Discrimination on the Grounds of Sexual Orientation and Gender Identity in the EU Member States. PArt. II the Social Situation. European Agency for Fundamental Rights. Available at: 473

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August 2014, a court in Bergamo fined former MP Carlo Taormina EUR 10,000, and ordered him to apologise for saying he would never hire gay people because they were ‘against nature’ in a 2013 radio interview. LGBTI NGO Rete Lenford sued him for discrimination based on sexual orientation in employment. The condemnation was the first of its kind.475 In Italy neither gay pride parades nor homophobic demonstrations can be banned by the public authorities as long as they are peaceful and unarmed. The right to hold both kinds of meetings is fully protected by the Constitution (Article 17).476 Another example of the negative responses to LGTB demands’ progress can be found in 2008, the newly appointed Minister of Equal Opportunities refused to back the Pride March in Rome, arguing that homosexuals are no longer discriminated against in Italy and that she disagreed with the aim of the Pride organisers, which she defined as official recognition of homosexual couples at the same level as marriage.477 Despite the full recognition of the right to assemble peaceful and unarmed in Article 17 of the Constitution of the Italian Republic, some recent legislative reforms may limit this rights in general and also with regards to the LGTB associations’ activities. In accordance with the main LGTB associations’ claims in their Submission to the United Nations Human Rights Council for its Universal Period Review (7th Session), recent legislation requires that marches, parades and other events with a religious aspect or one that could be against public moral, are not allowed to take place near to certain buildings, because they may be subject to violent attacks or because the marches may generate public scandal. Among these buildings there are governmental buildings and churches or other import religious buildings. The application of these provisions together with the identification of the buildings and streets which should be avoided is left to the local authorities’ appreciation. In Rome this has been used to hinder the 2009 Pride march which was considered as potentially generating a public scandal.478 Such a provision in Italy, which is particularly rich in churches and religious buildings, may represent a significant obstacle to the possibility of having Pride marches and similar events, hence representing and obstacle to freedom of assembly and expression.

2.14.2.1.2

Labour market

Secondly, the labour market is the only area in which sexual orientation is explicitly recognised as a forbidden ground of discrimination by Italian legislation. The Employment Directive 2000/78/EC has been implemented in Italy by Decreto legislativo [Legislative Decree] no. 216 of http://fra.europa.eu/en/publication/2011/homophobia-and-discrimination-grounds-sexual-orientation-andgender-identity-eu. 475 ILGA-Europe. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe 2015. Available at: http://www.ilga-europe.org/sites/default/files/Attachments/01_full_annual_review.pdf. 476 M. Cartabia (2008) Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation in Italy, FRALEX. 477 International Herald Tribune, May 19, 2008. 478 ILGA-Europe, ArciLesbica, ArciGay, Crisalide and ILGA. ITALY: The Status of Lesbian, Gay, Bisexual and Transgender Rights. Submission to the United Nations Human Rights Council for its Universal Periodic Review of Italy (7th Session).

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May 7, 2003,479 issued by the government acting upon delegation by the Parliament. Nevertheless, according to the European Commission, some parts of the Directive have not been properly implemented: cases where differences of legal treatment cannot be qualified as discrimination because they are justified as genuine and determining occupational requirements. The role of associations in engaging in judicial or administrative procedures against discrimination, burden of proof, and victimization.480

2.14.2.1.3

Education

As to education, surveys point to widespread harassment and bullying in schools. In a 2001 survey from Turin, 48 per cent of gay men and 10 per cent of lesbian women reported harassment or social isolation by other students when they were in school.481 Similar figures (41 per cent of men and 21 per cent of women) were found in a more recent sample.482 Also lack of support from the teachers is denounced. Moreover, LGTB issues are not included within the school curricula.483

2.14.2.1.4

Health care

Regarding health care service, same-sex partners are often not recognised as next of kin, resulting in denial of information and no influence on the treatment of the partner. There is often no recognition of the special needs of LGBT patients (for example, lesbians worrying about and avoiding gynaecological examinations).484 However, regarding the blood donation and after the controversial ECJ ruling on the French ban on gay men blood donation, LGTB people in Italy are allowed to donate blood without any governmental ban.485 The ECJ has ruled that EU governments may be justified in banning gay men from donating blood but only under strict conditions.486

Available at: http://www.camera.it/parlam/leggi/deleghe/03216dl.htm. M. Cartabia (2008) Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation in Italy, FRALEX. 481 C. Saraceno (2003) Diversi da chi? Gay, lesbiche, transessuali in un'area metropolitana, Roma: Derive Approdi. 482 A 2007 web survey commissioned by Regione Toscana carried out by the Department of Social Research, University of East Piedmont. 483 C. Bertone (2008) The Situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. Sociological Country Report. 484 Danish Institute for Human Rights. The social situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. March 2009. Available at: http://fra.europa.eu/sites/default/files/fra_uploads/379-FRA-hdgsopart2-NR_IT.pdf. 485 See http://elpais.com/elpais/2014/11/28/ciencia/1417191728_587426.html [accessed on the 8th June 2015]. 486 European Court of Justice. Judgment in Case C-528/13: Geoffrey Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes and Établissement français du sang. 479 480

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2.14.2.1.5 Sports In sports, the principal concern has to do with the lack of LGBT visibility. Also neo-fascist groups expressing anti-LGBT sentiment are present among several fan clubs and hooligan groups.487 However, some developments can be observed. LGBT sports groups have emerged in Italy in the last years, and some events have received public funding.488

2.14.2.1.6

Asylum regime

As far as the asylum regime is concerned, Directive 2004/83/EC has been implemented by Legislative Decree 251/2007.489 Article 8 lays down sexual orientation as a ground for asylum. Two relevant Supreme Court of Cassation decisions490 recognising refugee status affirm that the petitioner must prove that in the country of origin, homosexuality, as a private personal practice and not only as a public manifestation of ‘sexual indecency’, is considered as a criminal offence. Due to the lack of official recognition of same-sex partnerships in Italy, LGBT persons do not have access to reunification with partners who are not Italian citizens. The Italian legal system provides family reunification only for spouses, therefore excluding same-sex marriage (Art. 2 e Legislative Decree 5/2007, Art. 29 a Legislative Decree 286/1998).491 The legal status of samesex couples in Italy will be further analysed in the next section.

2.14.2.1.7

Criminal Law

It is also important to assess whether or not the discrimination on basis of sexual orientation is included within Criminal Law. Hate speech related to homophobia or discrimination on basis of sexual orientation is not included within the penalization of hate speech laid down in the Italian Criminal Law. It only penalises hate speech related to discrimination on the grounds of race, ethnicity, nationality or religion. Moreover, the Italian legal system takes no account— either in its legislation nor in its case law—of whether crime is committed with homophobic intent. There are no official data regarding the number of non-criminal court cases initiated in connection with homophobic statements or incidents.492 The available information shows that many LGTB persons suffer homophobic violence (in terms of physical or verbal attacks). According to a recent Web survey, half of LGB persons felt less safe because of their sexuality. More than a hundred homophobic homicides of gay men have been identified between 1990 and 2001. Hate crime, of threats thereof, is also found within 487 Danish Institute for Human Rights. The social situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. March 2009. P. 11. 488 C. Bertone (2008) The Situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. Sociological Country Report. 489 Italy/Decreto legislativo 251/2007 (19.11.2007). 490 Italy/Corte di Cassazione (18.01.2008) and Corte di Cassazione (25.07.2007). 491 Italy/Decreto legislativo 5/2007, Decreto legislativo 286/1998 (25.07.1998). (Testo unico sull’immigrazione). 492 M. Cartabia (2008) Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation in Italy, FRALEX.

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families. Violence targeting persons or LGB sites or organisations has acquired greater visibility in the media.493

2.14.2.2 Recognition of relationships/family protection The term ‘family’ is included and defined within the highest judicial norm, the Constitution. Article 29 of the Italian Constitution recognizes the rights of the family as a natural society founded on matrimony.494 This specific concept has been interpreted by the Constitutional Court in some cases. One of the most important ones will be analysed in next section. With regard to the marital age of the population, according to the National Institute for Statics, the average age of first marriages in 2011 was 34 for men and 31 for women.495

2.14.2.3 Recognition of homosexual relationships The historical legacy of Italian legislation is characterised by negation rather than repression of homosexuality. Same-sex relations, as well as homophobia, remain invisible to state regulation.496 In fact, several courts have pointed out that since homosexual marriage is neither expressly permitted nor prohibited under Italian law, there is therefore a gap in the legal system which it falls to the Constitutional Court to fill.497 Judgment 138 of 2010 of the Constitutional Court shows the current problematic situation of the legal status of same-sex couples in Italy. In this case the Court considered the provisions of the Civil Code governing marriage, following references from two Courts seized with applications from homosexual couples seeking recognition of their right to marry following refusals by the civil registrar to publish notice of their intention to marry. The applicants, as well as the Tribunale di Venezia, claimed that the literal interpretation of the provisions of the Civil Code underlying the refusal to grant publication are unconstitutional with particular reference to Articles 2, 3, 10(2) and 29 of the Constitution. This Tribunal claimed that even though there is no provision containing a definition, ‘the institution of marriage as provided for under Italian law in its current form indubitably refers only to marriage between persons of the opposite sex’. An

C. Bertone (2008) The Situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. Sociological Country Report. 494 Italy (1947) The Constitution of the Republic of Italy (English version). Article 29. Available at: http://archive.equaljus.eu/60/1/Italian_Constitution.pdf. 495 ISTAT. Marriage in Italy, 2011. Available at: http://www.istat.it/en/files/2012/11/matrimoni2011report_ING.pdf?title=Marriage+in+Italy++30+Nov+2012+-+Full+text.pdf. 496 Danish Institute for Human Rights. The social situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. March 2009. 497 Corte costituzionale. Judgment No. 138 of 2010. Available at (English version): http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S2010138_Amirante_Criscuolo_ EN.pdf. 493

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interpretation widening the scope of the institution also to same-sex couples can only be made by the Constitutional Court. Both the applicants and this Court supported an interpretation which would take into account social change and the rapid transformation in society and customs, the end of the monopoly held by the model of the normal traditional family and the parallel spontaneous emergence of different (albeit minority) forms of cohabitation. The Constitutional Court stated the fact that the institution of civil marriage, as currently provided for under Italian law, refers only to the stable union of a man and a woman is clear not only from the contested provisions, but also the legislation governing affiliation within wedlock (Articles 231 et seq of the Civil Code, with particular reference to actions for repudiation, Articles 235, 244 et seq of the same Code) and by other provisions (…) Furthermore, it referred to other judgments in which has been stated that the difference in sex of the married couple is one of the minimum indispensable prerequisites for the existence of a marriage498. In its assessment of constitutionality of these provisions, the Court rejected the applicants and Courts’ arguments. With regard to Article 29 of the Constitution, the Court used a historical interpretation and referred to the intentions of the drafters during the travaux preparatoires of the Constitution. Hence, although it considered the flexibility with which the constitutional principles must be interpreted (taking into account not only the transformations within the legal system but also the evolution of society), such an interpretation cannot go so far as to impinge upon the core of the provision, modifying it in such a manner as to embrace situations and problems that were not considered at all when it was enacted. The question of homosexual unions remained entirely unaddressed within the debate conducted within the Assembly. Regarding Article 3 of the Constitution (principle of non-discrimination), the Court rejected the unconstitutionality of the provisions because the legislation is grounded on Article 29 of the Constitution and also because the legislation itself does not result in unreasonable discrimination, since homosexual unions cannot be regarded as homogeneous with marriage. Finally, the Court also rejected the unconstitutionality under Article 2 of the Constitution, by which the Republic recognises and guarantees the inviolable rights of man, both as an individual as well as in social groupings in which he or she expresses his or her personality. The Court included homosexual unions under this scope since social grouping must be deemed to include all forms of simple or complex communities that are capable of permitting and favouring the free development of the person through relationships. According to the Court, this concept must also include homosexual unions, understood as the stable cohabitation of two individuals of the same sex, who are granted the fundamental right to live out their situation as a couple freely and to obtain legal recognition thereof along with the associated rights and duties, according to the time-scales, procedures and limits specified by law.

                                                                                                                      498

 

Court of Cassation, judgments no. 7877 of 2000, no. 1304 of 1990 and no. 1808 of 1976.

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Nonetheless, the Court found that the aspiration to this recognition cannot solely be achieved by rendering homosexual unions equivalent to marriage. Therefore, it is for Parliament to determine – exercising its full discretion – the forms of guarantee and recognition for the aforementioned unions, whilst the Constitutional Court has the possibility to intervene in order to protect specific situations. The Civil Cassation has used similar arguments for rejecting the unconstitutionality of the nonrecognition of same-sex marriage in another country.499 In conclusion, most of the developments towards the recognition of LGTB rights are carried out by the judiciary due to the lack of political initiative to regulate this issues. In the last judgment of the Constitutional Court a call can be seen for the Parliament in order to develop the specific guarantees and recognitions of the same-sex unions. As far as the legal status of same-sex relationships is concerned, the Italian legal system does not recognise same-sex marriage or any other form of heterosexual or LGBT partnership. Adoption and foster care are regulated by the Legge 184/1983. Adoption is permitted only to married couples who must be only opposite-sex couples. Therefore, there is no opportunity for LGBT couples to adopt children, and no recognition of the relation between children and co-parents in LGBT families.500 The Italian Parliament has recognised neither same-sex marriage nor same-sex civil partnerships (or different-sex ones, in fact). Nevertheless, with regard to opposite-sex couples, both the legislative and judicial sides tend to equate more uxorio partners with spouses. The Italian legal system does not entitle unmarried individuals, regardless of their sexual orientation, to adopt. Only heterosexual couples married for at least 3 years can adopt.501 Quite recently, the Court of Cassation502 declared that the idea that the custodial parent’s homosexual orientation would be dangerous for the minor’s well-balanced growth was a mere prejudice and therefore inadmissible. The sexual orientation of the custodial parent is irrelevant in evaluating parental aptitude in that case, whereas the harmfulness of the family setting has to be proved.503 Despite of the legal status of same-sex relationships in Italy as explained above, the recent Oliari and Others v. Italy ECtHR case may be a turning point with regard to this topic. The case concerned the complaint by three same-sex couples that under Italian legislation do not have the possibility to get married or enter into any other kind of civil union. The European Court of Human Rights considered that the legal protection currently available to same-sex couples in Italy did not only fail to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. It follows a breach of Article 8 of the Convention, which includes the right to respect for private and family life. Moreover, the Court                                                                                                                       Cass. civ. Sez. I, 09-02-2015, n. 2400). M. Cartabia (2008) Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation in Italy, FRALEX. 501 See Art. 6 of Law No. 149/2001. 502 Decision of the Italian Court of Cassation No. 601, of 11th January 2013. 503 Similarly, see Decision of the Italian Court of Cassation No. 16593, of 18th June 2008; and Decision of the Court of Naples of 28th June 2006, confirmed by the Decision of the Court of Appeal No. 1067, of 11th April 2007. 499 500

 

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considered that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection.504 The Court considered so on the basis of a trend among Council of Europe Member States towards legal recognition of same-sex couples (24 out of the 47 Member States having legislated in favour of such recognition) and that the Italian Constitutional Court had repeatedly called for such protection and recognition. Once again, it seems like the judiciary branch, in the absence of a political initiative, is setting the pace for a legal recognition of the same-sex couples in Italy.

2.14.3 National policy The Italian legal system does not recognise same-sex marriage or any other form of heterosexual or LGBT partnership. There is no opportunity for LGBT couples to adopt children, and no recognition of the relation between children and co-parents in LGBT families.505 The question of family rights is central to public debate concerning LGBT issues, and is often on the agenda of LGBT organisations. Parenthood is becoming relevant in public debates and on the agenda of the organisations. Research shows that 20.5 per cent of Italian gay men and 17.7 per cent of lesbians are parents, and that desire for having children or expanding families is widespread.506 Assisted insemination is still a rare phenomenon, but interest seems to be growing rapidly, especially among lesbians, even though donor insemination is illegal in Italy.507 According to Arcigay and Arcilesbica, the main LGTB associations in Italy, it is more difficult to get public housing for those who are not married.508 Same-sex couples are also being discriminated regarding the freedom of movement of EU citizens and their family members. Same-sex partners are not eligible to residence permits on the basis of their partnership. Following the EU Directive 2004/38/EC, freedom of movement is assured to single persons, regardless of sexual orientation. However, Italian law does not consider same-sex marriage, registered partnership or durable relationship, as autonomous entitlement to enjoy freedom of movement equally to heterosexual married persons.509 There is a growing number of cases involving Italian citizens marrying, or otherwise legally registering their relationship, in another EU country and asking for recognition of their status as                                                                                                                       ECtHR Case of Oliari and Others v. Italy (application no. 18766/11 and 36030/11). P. 174. C. Bertone (2008) The Situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. Sociological Country Report. 506 Danish Institute for Human Rights. The social situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. March 2009. 507 C. Bertone (2008) The Situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. Sociological Country Report. 508 Danish Institute for Human Rights. The social situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. March 2009. 509 M. Cartabia (2008) Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation in Italy, FRALEX. 504 505

 

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a couple in Italy. A number of lawsuits are currently pending. Several local and regional Public Administrations recognise civil unions or same-sex partnerships. However, this competence power remains upon the central government. Therefore, they have more a symbolic value. Similarly, some regional governments recognise the rights of same-sex partners in the regulations under their competence.510 Several LGTB organisations are mobilizing for the legal recognition of same-sex partnerships and against homophobia and discrimination. Indeed, Italian largest national gay organization Arcigay, includes within their objectives, the same-sex marriage as an imperative objective of the association.511 But there is an ongoing and quite long-lasting debate regarding the recognition of same-sex couples’ legal status and rights within the Italian society. Although some bills on civil unions or the recognition of rights to unregistered couples have been introduced in the Parliament in the past twenty-five years, none has been approved. As a matter of example, in 2007 the government led by Romano Prodi introduced an Act which would have granted rights in areas of labour law, inheritance, taxation and health care to same-sex partnerships.512 However, this act was not a priority in the legislature and it dropped when a new Parliament was elected after Prodi losing a confident vote. More recently, in 2013, the secretary of the Democratic Party, Matteo Renzi announced that the party would work on the recognition of same-sex relations. Moreover, leading politicians such as Ignazio Marino, Mayor of Rome, have insisted on passing such legislation.513 The act is now under the Senate's Justice Committee and it was many times delayed due to the opposition of New Centre-Right. Renzi however promised that it will reach the Senate's assembly as soon as possible, after the second reading of the constitutional reform will pass in the Chamber of Deputies.514 The act would guarantee the same benefits reserved for marriage, but it will be for same-sex couples only. Furthermore, step-parent adoption is included while joint adoption is not, following the Germany's registered life partnerships. It is supported by a large majority: the Democratic Party, the Five Star Movement, Forza Italia, Left Ecology Freedom. There are however some MPs from the Democratic Party and from Forza Italia that disagree with the party line: some of them due to the act going too far and others are demanding same-sex marriage. This latter proposal is also supported by Left Ecology Freedom and the Five Star Movement.515

                                                                                                                      510 C. Bertone (2008) The Situation concerning homophobia and discrimination on grounds of sexual orientation in Italy. Sociological Country Report. 511See http://www.arcigay.it/obiettivi/matrimonio-gay/. 512 See: http://news.bbc.co.uk/2/hi/europe/6345729.stm. 513 See http://www.huffingtonpost.com/2014/06/07/rome-gay-pride-march-_n_5466323.html. 514 See: http://espresso.repubblica.it/attualita/2015/02/04/news/il-non-senso-di-renzi-per-le-unioni-gay-1.198171. 515 See: http://www.beppegrillo.it/2012/07/nozze_gay.html.

 

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With regard to the reasons for the non-existence of legal recognition of same-sex couples in Italy, the main LGTB organisations have continuously denounced the influence of the Catholic Church on Italian politics. Indeed, in the Report Submission to the United Nations Human Rights Council for its Universal Periodic Review of the country, such organisations claimed that the hierarchies of the Catholic Church have been strongly critical toward the possibility of legal recognition of samesex partnerships, publicly arguing that such unions are against nature and must not be passed by parliament. Changes cannot only be regarded at the political level but also within the society and public opinion. While in 2006 only 31% of Italians thought that same-sex marriages should be allowed throughout Europe, according to the Eurobarometer516, in October 2014 Demos poll found that 55% of respondents were in favour of same-sex marriage and 42% would be against this.517

2.14.4 Summary In conclusion, Italian legislation regarding same-sex couples can be seen as limited but being developed within an ongoing debate. Despite of a long history of legislative proposals for civil unions, Italy does not recognize any type of same-sex unions, neither same-sex marriage nor civil partnerships. Several regions have formally supported efforts for national law on civil unions and some municipalities have passed laws providing for civil unions. All these actions, however, are merely symbolic as regions do not have legislative power on the issue. Adoption is not all allowed to same-sex couples either. Regarding the legislation on the prohibition of discrimination on the ground of sexual orientation, only in the field of employment has been enacted. Due to the lack of political initiative in the regulation of same-sex couples, the judiciary plays a crucial role in Italy. As it has been assessed above, the Constitutional Court has highlighted its constraints in the ruling of same-sex couples’ rights and, thus, it has pointed out the necessity of the regulation of these relationships by the Parliament. Moreover, the European Court of Human Rights, through its recent judgment regarding the Oliari and Others v. Italy case, may be a turning point for the Italian legal system in order to recognize the same-sex couples.

                                                                                                                      516 Eurobarometer 2006. Public opinion in the European Union. Available at: http://ec.europa.eu/public_opinion/archives/eb/eb66/eb66_highlights_en.pdf. 517See: http://www.repubblica.it/cronaca/2014/10/12/news/nozze_gay_per_la_prima_volta_oltre_la_met_degli_italiani_ dice_s-97902620/.

 

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2.15 Latvia Written by Chrysovalantou Stampouli and Georgia Bakatsia518

2.15.1 General Principles of Jurisdiction 2.15.1.1 Government function The Republic of Latvia is a parliamentary republic with a central government. Legislative power is vested in the parliament –that is named “Saema” –, whereas executive power is exercised by the cabinet of ministers that must have the confidence of the parliament and moreover, shall be accountable to the parliament for its actions.519 The parliament is unicameral, it consists of one hundred members and it is elected in general elections in proportional representation. The head of state is the President of the Republic who is elected for a four-year term by the parliament. However, taking into consideration the existing parliamentary system, the majority of the powers of the President of the Republic are limited and mostly nominal. As such, the highest executive powers are exercised by the Cabinet of ministers.

2.15.1.2 Human rights in Latvian Constitution The Constitution of Latvia was adopted by the Constitutional Assembly of Latvia on the 15th of February 1922 and came into force on the 7th of November 1922. However, as far as the protection of human rights is concerned, the Constitution of Latvia did not contain a relevant chapter until 1998, when a chapter on human rights, which consists of 28 articles, was finally added following a constitutional amendment. Since then, fundamental rights such as freedom of expression, freedom of assembly, the right to free movement or the right to human honour and dignity are guaranteed under the Constitution of Latvia520. Moreover, it should be noted that the principle of equality, that is included in the chapter on fundamental rights, is guaranteed for all human beings in Latvia and not only for Latvian citizens, given that ar. 91 of the Constitution of Latvia provides that “All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realized without discrimination of any kind”521. Yet, there is a total absence of provisions with respect to the rights of same- sex couples. As regards to the national institutions that handle human rights’ issues, it should be mentioned that since 1990, a Committee that deals with human rights exists in the parliament of Latvia. The 518

Chrysovalantou  Stampouli  is  a  trainee  Lawyer  and  postgraduate  student  (LL.M.  in  Transnational  &  European   Commercial  Law,  Arbitration,  Mediation  &  Energy  Law)  at  the  International  Hellenic  University  of  Thessaloniki.   Georgia  Bakatsia  is  an  attorney  at  Law  and  a  postgradute  student  (LL.M.  in  Public  Law  and  Political  Science)    at   the  Aristotle  University  of  Thessaloniki.   519Constitution of Latvia, https://www.constituteproject.org/constitution/Latvia_2014?lang=en 520Ar. 89 - 116 of the Constitution of Latvia 521 Report on “The Constitutional Court of Latvia and the principle of equality”, Gunars Kutris

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aforementioned Committee that is currently called Human Rights and Public Affairs Committee is elected by the parliament which has the right to determine its duties and the number of its members522. Furthermore, in 1996 the National Human Rights Office was established as an independent state institution aiming to promote the observance of human rights and fundamental rights and freedoms of citizens in the Republic of Latvia, in accordance with international human rights and conventions ratified by Latvia as well as with the Constitution of Latvia. In 2007, the National Human Rights Office altered into the Ombudsman’s Office. On an international level, Latvia has signed and ratified a number of human rights treaties, including, inter alia, the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights.523

2.15.1.3 Protection of human rights before the Constitutional Court The idea to establish an institution with the authority to realize constitutional control first appeared in the 1930’s.524 However, it was not until the 1st of June 1996 that the provision to establish a Constitutional Court was added in the Constitution of Latvia following the adoption of ar. 85. On the 5th of June 1996, the Law of the Constitutional Court which describes the judicial process held before the Constitutional Court as well as its function was adopted. According to the aforementioned provisions, the Constitutional Court adjudicates, inter alia, on the compliance of national laws or international agreements with the Constitution. It also adjudicates on the compliance of the national legal norms with the international agreements ratified by Latvia, given they are not in conflict with the Constitution525. The Constitutional Court has the jurisdiction to declare laws or other enactments invalid as of the date of publication of the judgement of the Constitutional Court, unless the Constitutional Court has ruled otherwise. As far as the protection of fundamental rights is concerned, the Constitutional Court Law prescribes that any person who considers that an infringement of his/her fundamental rights, as defined by the Constitution, has occurred through the application of a normative act, he/she has the right to submit a Constitutional Complaint before the Constitutional Court. As such, any person can pursue individually his/her constitutional rights in cases of violation before the Constitutional Court. The exhaustion of ordinary legal remedies (before the referral to the Constitutional Court) or the absence of other remedies (general legal remedies) is a prerequisite for the submission of the Constitutional Claim. By way of exception, if the adjudication of a Constitutional Complaint is of general interest or if the ordinary legal remedies cannot prevent                                                                                                                       522Kortmann

C./Fleuren J./Voermans W., Constitutional Law of 10 EU Member States, Kluwer 2006, p. V- 24 Nations Human Rights, http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=95&Lang=EN 524Reply by the Constitutional Court of Latvia – 3rd Congress of the World Conference on Constitutional Justice “Constitutional Justice and Social Integration” http://www.venice.coe.int/WCCJ/Seoul/docs/Latvia_CC_reply_questionnaire_3WCCJ-E.pdf 525Ar. 16 of the Constitutional Court Law 523United

 

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substantial damage for the applicant the Constitutional Court may decide to adjudicate the Constitutional Complaint before all other legal means are exhausted. The deadline for the submission of the Constitutional Complaint is six months after the decision of the last institution came into effect or, in case of absence of general legal remedies, within six months after the date of infringement of the fundamental right.

2.15.2 Equal Rights 2.15.2.1 Anti-discrimination legislation Article 91 of the Constitution of Latvia expressly provides that all human beings in Latvia shall be equal before the law and the courts. Human rights shall be implemented without discrimination of any kind. The wording of article 91 does not specify the grounds on which discrimination shall be prohibited. The constitutional prohibition of discrimination is supplemented by anti-discrimination provisions that are scattered in many other pieces of legislation.526 It should be noted that, according to the case law of the Constitutional Court, constitutional anti-discrimination provisions are directly applicable and as such, in case of absence of a concretizing law, the Court cannot refuse to accept the claim of discrimination on the grounds that the specific claim in not recognized by legislation.527 The grounds of discrimination that are generally prohibited in Latvian law are: race, ethnicity, national origin, gender, language, party membership, religious or political opinions, health condition, place of residence and occupation.528 Characteristically, the Law on Free Development and Rights for Cultural Autonomy of National and Ethnic Groups, guarantees that the residents of the Republic of Latvia have equal rights according to international standards regardless of their ethnic origin; the Law on Social Security prohibits direct or indirect discrimination based on race, ethnic origin, skin colour, sex, age, disability, health, religious, political or other conviction, national or social origin or material, family or other status; the Education Law prescribes that every resident shall be equally enabled to acquire education regardless of their social or material status, race, ethnicity, sex, religious or political conviction, health occupation or place of residence.529 In regard to sexual orientation, only two laws, the Labour Law (21.09.2006) and the Law on Prohibition of Discrimination of Physical Persons as Economic Operators (29.12.2012), clearly 526Reports of measures to combat discrimination, Country Report 2013, European Network in the nondiscrimination field, http://www.non-discrimination.net/countries/latvia 527The 05.12.2001 decision of the Constitutional Court in the case No.2001-07-2013, http://www.satv.tiesa.gov.lv/upload/2001-07-0103.rtf 528Reports of measures to combat discrimination, Country Report 2013, European Network in the nondiscrimination field, http://www.non-discrimination.net/countries/latvia 529Aleksejs Dimitrovs, Equality Law in Latvia: Current Trends and Challenges, The Equal Rights Review, Vol. 9, 2012, p.12, http://www.equalrightstrust.org/ertdocumentbank/err9_Dimitrovs.pdf

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prohibit discrimination on grounds of sexual orientation. Both of the aforementioned laws are included among the laws that transposed the non-discrimination European Directives.530 Amendments to the Labour Law that included references to sexual orientation were adopted on the 21st of September 2006. Particularly, according to Art. 29 of the aforementioned law, differential treatment based on, amongst others (person’s race, colour, age, disability, religious and political or other conviction, national or social origin, property or family status) sexual orientation is prohibited.531 The inclusion of sexual orientation as one of the prohibited grounds on Labour Law led to harsh debates in the Parliament. In particular, prior to the adoption of the aforementioned amendment, on the 7th of May 2004 an explicit reference to sexual orientation that was included in the first amendment of the Labour Law, was removed by the competent Parliamentary Committee (Human Rights and Public Affairs Committee) - that turned to homophobic religiously based homophobic rhetoric - and the phrase “other circumstances” was added in its place.532 Moreover, on 15.06.2006, the Parliament once again, deleted the provisions that referred to sexual orientation from a draft amendment. However, after reaction of the Ministry of Welfare and LGBT NGO’s that sent an explanatory letter to the Chairperson of the Parliament according to the procedure that is defined in Art. 71 of the Constitution of Latvia533, the President vetoed the bill voted by the Parliament, declaring that the law was not in compliance with Latvia’s European Union’s obligations. Finally, the amendments that ban discrimination on ground of sexual orientation were adopted. It should be mentioned that even prior to the explicit prohibition of discrimination based on sexual orientation in the context of the Labour Law, the Constitutional Court held that, according to the constitutional non-discrimination clause, the Labour Law prohibits differential treatment based on sexual orientation, even in the absence of an explicit reference.534 As regards the Law on Prohibition of Discrimination of Natural Persons-Economic Operators, which was adopted on the 19th of December 2012 and came into force on the 2nd of January 2013, it prohibits discrimination in regards to access to economic activity and self-employment based on person’s, among others, sexual orientation. Besides that, in January 2010, during the amendments to the Education Law, it was decided not to include sexual orientation among prohibited discrimination provisions. The parliamentary                                                                                                                       530Directives

2000/43/EC and 2000/78/EC of measures to combat discrimination, Country Report 2013, European Network in the nondiscrimination field, http://www.non-discrimination.net/countries/latvia, p. 60 532Ilvija Puce, Legal Study of Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, Latvian Centre for Human Rights, February 2010http://fra.europa.eu/sites/default/files/fra_uploads/1361-LGBT-2010_thematic-study_LV.pdf., p.10 533Art. 71 of the Constitution of Latvia: ”Within ten days after the adoption of a law by the Saeima, the President of the State shall be entitled to ask, by means of an explanatory letter addressed to the Chairperson of the Saeima, for the review of the law. If the Saeima does not amend the law, the President of State shall not have the right to raise any further objections”. 534Reports of measures to combat discrimination, Country Report 2013, European Network in the nondiscrimination field, http://www.non-discrimination.net/countries/latvia, p.11 531Reports

 

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Education, Culture and Science Commission stated that the inclusion of these provisions would put at risk the adoption of the Law.535 Moreover, despite the fact that the initial version of the Patient’s Rights Law banned the restriction of patients’ rights, inter alia, on the ground of sexual orientation, the reference to sexual orientation was omitted during the second reading that took place after the proposals made by the Parliamentary Human Rights and Public Affairs Commission and Social and Labour Affairs Commission. Nevertheless, an open-ended list was adopted, according to which “in guaranteeing patients’ rights, differential treatment shall be prohibited on grounds of person’s race, ethnic, origin, colour, gender, age, disability, state of health, religious, political or other conviction, national or social origin, property or family status or other circumstances”. As such, sexual orientation may be included under “other circumstances” in the Law on Patients’ Rights.536

2.15.2.2 Family protection in Latvian legislation There is no definition of “family” in Latvian Law.537 Nevertheless, the Senate of the Supreme Court of the Republic of Latvia in a judgement of 28 February 2008 referred to the European’s Court of Human Rights case- law has recognized that according to Art. 8 of the European Convention of Human Rights, the concept of family is not limited to relationships based on marriage and it can include other de facto family ties.538 Regarding the definition of marriage, until 1995, there was no legal definition of the term “marriage” included in the national legislation or in the Constitution of Latvia. However, on the 15th of December 1995, a constitutional amendment that defined marriage as a union of a man and a woman was adopted in order to exclude any legal recognition of same-sex marriage. Thus, according to Article 110 of the Constitution of Latvia, as it has been formulated after the abovementioned amendment, “the State protects and supports marriage – a union between a man and a woman, family, rights of parents and children. The State provides special protection to disabled children, those children left without parents’ and children who have suffered from violence.” As such, only opposite - sex couples are recognized and protected under Latvian Constitution. It is worth pointing out that the proposal of the amendment that was finally adopted was made by the First Party of Latvia

                                                                                                                      535Reports

of measures to combat discrimination, Country Report 2013, European Network in the nondiscrimination field, http://www.non-discrimination.net/countries/latvia, p.13 536Ilvija Puce, Legal Study of Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, Latvian Centre for Human Rights, February 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1361-LGBT-2010_thematic-study_LV.pdf,p.12 537Ilvija Puce, Legal Study of Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, Latvian Centre for Human Rights, February 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1361-LGBT-2010_thematic-study_LV.pdf, p.46 538 Inese Libina-Egner, National Report: Latvia, Informal Relationships, January 2015, http://ceflonline.net/wpcontent/uploads/Latvia-IR.pdf

 

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that explicitly and openly stated that their goal was to preclude the legal recognition of marriage between persons of the same gender.539 It should be mentioned that “marriage” consists the only form of cohabitation recognized by law, since the legislation of Latvia does not provide for registered partnership.540 Moreover, Latvian legislature does not contain a legal order on informal relationships and does not recognize cohabitating couples. However, in recent years the proportion of unregistered cohabiting partners has increased as in 2011 it was 13% of the total number of families, while in 2000 it was 6% of the total number of families.541

2.15.2.3 Recognition of same-sex relationships Latvia’s Civil Code expressly prohibits same-sex marriage since 1993 and does not foresee the alternative of civil partnership.542 As such, same - sex partnerships cannot be registered. Therefore, same-sex couples are not treated equally in comparison to opposite - sex couples. Until today, several attempts were made to register same - sex partnerships. In particular, in 1999, the Latvian National Human Rights Office drafted a law in cooperation with the Homosexuality Information Centre on registered partnership of persons of the same gender. On the 28th of September 1999, the proposal was sent to the Human Rights and Public Affairs Commission of the Parliament for discussion. At first, the draft was not rejected by the aforementioned Commission, but was sent to the Legal Office of the Parliament543+544. However, on the 30th of November 1999, the aforementioned Commission declined to send the draft to the full parliament and subsequently, was rejected.545 Thereafter, in 2011 the LGBT NonGovernmental Organisation “Mozaika” drafted a Registered Partnership Law, which again was not examined by the Parliament. Currently, in January 2015, a draft law, submitted by the Unity Party and ruling coalition VeikoSpolitis, suggested an amendment to the Latvian Civil Code so as to provide for partnerships.546 The draft legislation that would allow “any two persons” to register their partnership was finally rejected on the 24th of February 2015 by the Legal Affairs Committee. On the 23rd of March, the head of the “For Latvia’s Development” party, “Juris Puce”, initiated a signature collection for the adoption of a cohabitation law which would                                                                                                                       539 Latvia cements homophobia in Constitution, http://ilga-europe.org/resources/news/media-releases/latviacements-homophobia-constitution 540http://europa.eu/youreurope/citizens/family/couple/registered-partners/index_en.htm 541 Inese Libina-Egner, National Report: Latvia, Informal Relationships, January 2015, http://ceflonline.net/wpcontent/uploads/Latvia-IR.pdf 542Article 35.2 of Latvian’s Civil Law 543The Legal Office of the Parliament consists of five independent lawyers with the competence to provide parliamentary commissions with legal advice 544 Juris Ludvigs Lavrikovs, Homosexuality Information Centre, Latvia: Progress on Partnership Law, http://www.france.qrd.org/assocs/ilga/euroletter/74.html#LV1 545Rex Wockner, Latvia kills partners’ measure, http://www.france.qrd.org/assocs/ilga/euroletter/76.html#LV 546Latvian Parliament to consider gender neutral partnership law in 2015, http://www.gaystarnews.com/article/latvian-parliament-consider-gender-neutral-partnership-law-2015090215

 

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sanction relations and obligations of non-married couples, regardless of gender.547 The adoption of a gender neutral cohabitation law is being supported by several politicians and is gaining wider support.548 Latvian legislation remains silent on the issue of the right to family reunification, regulated by Council Directive 2003/86/EC,549 with regard to partnerships registered in other countries, whether EU Member States or third countries. In particular, Immigration Law that prescribes the conditions of marriage needed so that a spouse of an alien may be granted a residence permit does not exclude same-sex couples. However, according to information provided by the Office of Migration and Citizenship Affairs, the spouse of an alien, as well as the spouse of a Latvian citizen on the basis of a same-sex marriage or partnership registered abroad would not be granted a residence permit, as the Latvian Civil Law expressly prohibits same-sex marriage and there is no regulation on civil partnership in Latvia.550 As such, a same-sex partner cannot accompany or join as a family member on the basis of family reunification in Latvia, and therefore, he/she cannot take advantage of the relevant EU Directive. Respectively, a same-sex partner would not be accepted as a family member in the context of asylum and/or subsidiary protection under the Latvian Asylum legislation, even if the same-sex marriage or partnership is registered in a country which recognizes it.551 As for the adoption of a child, Latvian Civil Law provides that “persons who are not married to each other may not adopt one and the same child”. Nevertheless, Civil Law, beyond married couples, allows adoption by a single person. According to the Ministry of Family and Children’s Affairs, in 2007 approximately 20% of adoptions were single-parent adoptions.552 Since sexual orientation is not included among the factors taken into account when establishing whether the potential parent is suitable for adopting a child, a homosexual single person can pursue the adoption of a child.

                                                                                                                      547Coalition

skeptical about approving Cohabitation Law, http://bnn-news.com/coalition-sceptical-approvingcohabitation-law-126989 548EuroPride 2015: Latvia turning its face towards equality, http://ilga-europe.org/resources/news/latestnews/europride-2015-latvia-towards-equality 5492003/86/EC Directive that applies to third country nationals that reside lawfully in EU Member States requires Members States to authorize the entry and residence of the sponsor’s spouse. 550Ilvija Puce, Legal Study of Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, Latvian Centre for Human Rights, February 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1361-LGBT-2010_thematic-study_LV.pdf, p.25 551Ilvija Puce, Legal Study of Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, Latvian Centre for Human Rights, February 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1361-LGBT-2010_thematic-study_LV.pdf, p.24 552Ilvija Puce, Legal Study of Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, Latvian Centre for Human Rights, February 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1361-LGBT-2010_thematic-study_LV.pdf, p.46

 

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2.15.3 National policy regarding homosexuals and same-sex couples 2.15.3.1 Political discussion regarding second parent adoption or joint adoption Given the absence of legal recognition of same-sex couples, there is no political discussion regarding the possibility of second parent adoption or joint adoption.

2.15.3.2 Society’s awareness towards rights of homosexuals Until recently, Latvian society was not aware of homosexuals’ rights. There were even some people that confused homosexuality with paedophilia.553 Despite the fact that there is no adequate or reliable information about the situation of LGBT in Latvia,554 we can assume that society’s awareness has increased as, contrary to previous Pride Parades, recent Pride Parades have taken place in a peaceful atmosphere. With regard to Riga Pride of 2015, the Executive Director of Ilga-Europe, Evelyne Paradis, declared that “the positive changes taking place in Latvia are encouraging. The Latvian people have sent a clear and strong message to the politicians- society is most definitely ready for change”.555 Consequently, the proactive role of the non-Governmental Society “Mozaika”, being one of the main organizers of Riga Pride Parades, has contributed to raising awareness of rights of homosexuals.

2.15.3.3 National Non-Governmental Organisations working on homosexual rights The largest Non-Governmental Organisation related to the LGBT community and their rights is “Mozaika”, which is a partner of Amnesty International and full-member of ILGA-Europe.556 Generally, as far as the involvement of Non-Governmental Organisations in law making process is concerned, non-Governmental Organisations can participate in the legislative process of Latvian Parliament since 2006 when the Parliament adopted a declaration of cooperation with non-Governmental Organisations. In particular, their involvement consists on the evaluation of legislative initiatives and the submission of proposals.557 Consequently, in 2011, “Mozaika” drafted the Registered Partnership Law which would regulate personal and property relations of same-sex couples. The draft has not been discussed by Parliament. It should be noted that even                                                                                                                       553It’s time for a Latvian discussion on gay rights, https://euobserver.com/opinion/126469 ; Latvia. Home of Homophobia, https://expateyeonlatvia.wordpress.com/2014/03/20/latvia-home-of-the-homophobe/ 554Latvia : The Status of Lesbian, Gay, Bisexual and Transgender Rights, http://lib.ohchr.org/HRBodies/UPR/Documents/session11/LV/JS1_JointSubmission1-eng.pdf 555Europride 2015: Latvia turning its face towards equality, http://ilga-europe.org/resources/news/latestnews/europride-2015-latvia-towards-equality 556 http://www.ngolatvia.lv/en/organizacijas-3/264?view=organizcija 557 http://www.saeima.lv/en/public-participation/the-saeima-and-ngo-forum

 

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the Ombudsman, referring to the public opinion that “is not tolerant towards same-sex relationships”, has not provided support to the draft. The Ombudsman recommended the amendment of sectoral laws instead, such as the Law on Rights of Patients, Anti-corruption Law, Procedural Law, so as to recognize the rights of unregistered partners in both same-sex and opposite-sex relationships.558

2.15.3.4 Social and political reasons for the absence of legal recognition of same - sex couples A high level of intolerance is regarded in Latvian society towards sexual minorities, rendering the issue of discrimination based on sexual orientation and subsequently, legal recognition of samesex couples a controversial topic. Particularly, in a survey conducted in 2011, 23,2% declared that homosexual persons, as well as same-sex relations are to be condemned, 27,6% answered that they tolerate homosexual persons, but not same-sex relations, 30% answered that neither homosexual persons nor same-sex relations are to be condemned and finally 18,9 % could not respond.559 Moreover, several incidents of violation of constitutional rights (freedom of assembly and freedom of expression) of homosexuals that have taken place in Latvia demonstrate the society’s intolerance as well as lack of protection by the Latvian State. In particular, in July 2005, the Latvian Gay and Lesbian Youth Support Group obtained the required permission from the responsible public authorities to organise a LGBT Pride Parade.560 After strong political pressure, by the Latvian First Party such as threats to provoke public disorder issued by nationalist organisations, as well as statements made by the Latvian Prime Minister who declared that a parade of sexual minorities in the middle of the capital next to the main Cathedral is not acceptable as Latvia is a state based on Christian values, the permit for the LGBT Pride was annulled by the Riga City Executive Director. Finally, the Administrative District Court overruled the decision of the Riga City Executive Director to annul the permit as it was unjustified and discriminatory.561 The Riga Pride took place in “a highly homophobic atmosphere, with real threats of violence reported and order maintained only by the strong presence of the police. No more than 100

                                                                                                                      558Aleksejs Dimitrovs, Equality Law in Latvia: Current Trends and Challenges, The Equal Rights Review, Vol. Nine, 2012, p.20, http://www.equalrightstrust.org/ertdocumentbank/err9_Dimitrovs.pdf 559Aleksejs Dimitrovs, Equality Law in Latvia: Current Trends and Challenges, The Equal Rights Review, Vol. Nine, 2012, p.20, http://www.equalrightstrust.org/ertdocumentbank/err9_Dimitrovs.pdf 560According to the Constitution of Latvia “The State shall protect the freedom of previously announced peaceful meetings street processions and pickets”. The Law on Meetings, Processions and Pickets prescribes that an advance notice should be submitted to local authorities at least 10 days before the event, who may prohibit the event on grounds related to national security, public safety, public order, prevention of crime, protection of health and morals and for protection of the rights and freedom of others 561Explanatory memorandum of the Chamber of Local Authorities of the Congress of Local and Regional Authorities (Council of Europe), Freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons, https://wcd.coe.int/ViewDoc.jsp?id=1110107&Site=Congress#P260_42514

 

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people participated in the Pride, however, several thousand observed the parade, the majority protesting against the Pride”562. In 2006, Latvian authorities withheld permission for the Riga Pride parade, stating that they received several threats of violence against participants in the march and as such, the police could not guarantee security during the march.563 The organizers of the Pride submitted a complaint before the Administrative District Court which upheld the decision of local authorities to prohibit the Pride on grounds of “national security”. The decision was appealed and overturned by the Regional Court and eventually by the Supreme Court of Latvia. As a consequence, amendments were made to the Latvian Law on Assemblies and Demonstrations, facilitating the organization of public events. The following years, several incidents took place during the Riga Pride Parades. Among others, in 2007, at the same time that the Riga Pride took place, an anti-LGBT “No - Pride” Group organized a counter-event, that outnumbered the participants of Riga Pride, with the title “World against Homosexuality”. Furthermore, in 2009, the parade was prohibited once again for political reasons, as it was planned to take place a few weeks before the municipal elections. The decision was overturned by the District Court and eventually, the parade took place peacefully564. Currently, positive changes that guarantee the freedom of assembly have occurred in Latvia. Particularly, in 2015, Riga Pride took place in “a truly festive and celebratory atmosphere, without any significant incidents”.565 Another issue to be reckoned with is a study undertaken by the non-Governmental Organisation “Mozaika” regarding homophobic speech used by politicians in Latvia. This demonstrates that political environment remains intolerant towards homosexuals’ rights. Homophobic speech used by some politicians, has contributed to the marginalization and exclusion of homosexuals in Latvia, resulting to the creation of “one of the most homophobic societies in Europe”. The speech of some politicians demonstrate extraordinary crudeness as statements include comparison of gays and lesbians as “pigs”, “weeds”, “the devil”, “monkeys”, “the plague”, “a virus”, “fleas”. Moreover, some politicians denote homosexuals’ rights on the grounds of “Christian values on which Latvian state is based". However, it should be mentioned that there have been a number of politicians that have made positive statements for homosexuals’ rights and have spoken out against homophobic attitudes.566                                                                                                                       562Ilvija Puce, Legal Study of Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, Latvian Centre for Human Rights, February 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1361-LGBT-2010_thematic-study_LV.pdf, p.29 563Explanatory memorandum of the Chamber of Local Authorities of the Congress of Local and Regional Authorities (Council of Europe), Freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons, https://wcd.coe.int/ViewDoc.jsp?id=1110107&Site=Congress 564Latvia : The Status of Lesbian, Gay, Bisexual and Transgender Rightshttp://lib.ohchr.org/HRBodies/UPR/Documents/session11/LV/JS1_JointSubmission1-eng.pdf 565 Europride 2015: Latvia turning its face towards equality, http://ilga-europe.org/resources/news/latestnews/europride-2015-latvia-towards-equality 566Mozaika, Homophobic Speech in Latvia: Monitoring the politicians, February 2007, p. 2

 

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To sum up, the as well as the intolerance of Latvian’s society, the inadequate protection of constitutional rights of homosexuals as well as the homophobic speech produced by several politicians in Latvia, consist the main reasons for the absence of legal recognition of same-sex couples

2.15.4 Summary In conclusion, Latvian legislation does not provide same - sex couples the right to marry, register their partnership or adopt children jointly. Same - sex marriage is even prohibited by the Constitution of Latvia since 2006. As such, same - sex couples are not treated equally in comparison to opposite-sex couples. Currently, efforts are made to diminish the existing inequality towards this part of population as political debate regarding same-sex couples’ rights is open.

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2.16 Lithuania Written by Chrysovalantou Stampouli and Georgia Bakatsia567

2.16.1 General Principles of Jurisdiction 2.16.1.1 Government function The Republic of Lithuania is an independent democratic republic with a multi-party parliament. Legislative power is vested in the Parliament, which is named Seimas, while Lithuania’s foreign policy is carried out by the President and the Government. The President’s term of office in the country is five years. The president is elected by the citizens of Lithuania who are over 18 years of age and he can be elected for no more than two consecutive terms. Currently, the country is led by the seventh head of state after the Restoration of Independence and the first woman President – Dalia Grybauskaite.568 Seimas, the unicameral Parliament of Lithuania, is the supreme legislative body. It is composed of 141 members who are elected for a four-year term in one-candidate or multi-candidate electoral areas on the basis of universal and equal suffrage by secret ballot in direct mixed system elections.569 The Government is composed of Prime Minister, acting as its head, and a cabinet of 14 ministers, which is the country’s executive body. Lithuania is a multi-party republic and the most popular parties in Lithuania are Social Democrats and Homeland Union – Lithuanian Christian Democrats.

2.16.1.2 Human rights in Constitution of Lithuania On 25 October 1992, the Constitution of the Republic of Lithuania, which came into force on 2 November 1992, was adopted by referendum.570 Fundamental human rights and democratic values, including freedom of “thought, faith, and conscience”, are enshrined in the Constitution. Under Charter II are secured not only social, political, or religious rights, but personal rights as well. The right to human dignity, the freedom of thought, the freedom of expression and the right to private life are some of them. It is worth mentioning that the Constitution of Lithuania declares equality for all the persons in Lithuania. Specifically, ar. 29 of the Lithuanian Constitution provides that: “All persons shall be equal before the law, the court, and the other State institutions and officials. The rights of the human being may not be restricted, nor may he be granted any privileges

567

Chrysovalantou  Stampouli  is  a  trainee  Lawyer  and  postgraduate  student  (LL.M.  in  Transnational  &  European   Commercial  Law,  Arbitration,  Mediation  &  Energy  Law)  at  the  International  Hellenic  University  of  Thessaloniki.   Georgia  Bakatsia  is  an  attorney  at  Law  and  a  postgradute  student  (LL.M.  in  Public  Law  and  Political  Science)    at   the  Aristotle  University  of  Thessaloniki.   568https://www.lietuva.lt/en/about_lithuania/government_politics 569http://www3.lrs.lt/pls/inter/w5_show?p_r=3803&p_k=2 570http://www.lrkt.lt/en/about-the-court/activity/history/188

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on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views.571” There is, however, no explicit protection of freedom of sexuality or rights granted for same-sex couples. The Constitution does not also provide directly the prohibition of discrimination on the ground of sexual orientation. According to an opinion, the sexual orientation of a person falls within the scope of ar. 22, which provides the immunity of personal life. As today, there is no accredited national human right institution in Lithuania. According to the Paris Principles, the mandate of a national human rights institution and the functions are empowered by several institutions: Seimas Ombudsmen’s Office, The Office of Equal Opportunities Ombudsperson, the Institution of the Ombudsman for Children Rights, State data protection inspectorate, the Office of the Inspector of Journalist Ethics, the Institute of Law. The Seimas Ombudsmen’s Office of the Republic of Lithuania in its strategic plan set an objective to seek that the Seimas Ombudsmen’s Office would become an accredited national human rights institution. In principle, the Seimas Ombudsmen’s Office is the institution that fulfills the requirements set by the Paris Principles the most from all the mentioned.572 According to the Constitutional Court of the Republic of Lithuania, the state is obliged by the Constitution to respect human rights and freedoms and to guarantee their protection from any unlawful attempt or restriction by legal, material or organizational means. Until Lithuania establishes a national human rights institution based on the Paris Principles, the ombudsmen institutions are very important institutional guarantees of human rights. The legislator, however, has to improve the laws on the ombudsmen institutions: strengthen and extend their mandates, revise the power of the ombudsman’s decisions, especially that of the specialized ombudsmen573. A draft on the Amendment of the Republic of Lithuania Law on the Seimas Ombudsmen has been prepared by the Board of the Seimas and has also been submitted to the United Nations Human Rights Office of the High Commissioner for Human Rights (OHCHR) to comment on its compliance with the Paris Principles and other international rights instruments.574 On an international level, Lithuania has signed and ratified a number of human rights treaties, including, inter alia, the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights.575

                                                                                                                      571Art. 18-37 of the Constitution of Lithuania http://users.unimi.it/dirpubesteuropa/wp-content/uploads/THECONSTITUTION-OF-THE-REPUBLIC-OF-LITHUANIA-of-1992.as-amended-to-2006.pdf 572http://www.ohchr.org/Documents/Issues/Defenders/AnswersNHRI/NHRIs/Lithuania.pdf 573ZiobieneEdita (2010) Reform of the Ombudsman Institutions in Lithuania, MykolasRomeris University, Faculty of Law 574http://www.ohchr.org/Documents/Issues/Defenders/AnswersNHRI/NHRIs/Lithuania.pdf 575http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=95&Lang=EN

 

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2.16.1.3 Protection of human rights The Constitution of the Republic of Lithuania has for the first time in the history of the state provided for the institution of constitutional justice-the Constitutional Court. On 3 February 1993, the Seimas adopted the Law on the Constitutional Court and on 2 August 1993, the Constitutional Court announced that it started to officially accept petitions for review of whether laws and other acts of the Seimas were not in conflict with the Constitution as well as whether the decrees of the President and acts of the Government were not in conflict with the Constitution or laws.576 The Constitutional Court does not perform any preliminary judicial review of laws, but it decides the constitutionality issues of enacted laws and other legal acts (a posteriori control). The right to file a petition with the Constitutional Court concerning the constitutionality of a legal act is vested in the Government and other groups of members of the Seimas and the courts, and the President of the Republic for cases concerning governmental acts.577 The Constitutional Court does not receive individual complaints, so individual constitutional complaints (including discrimination issues) are received only by the ordinary courts. The Code of Civil procedure and other procedural laws do not comprise special judicial, administrative or conciliation procedures for human rights cases, or more specific for discrimination cases. The most widely used possibility in practice is to address the Equal Opportunities Ombudsperson, an office created by the Law on Equal Treatment. In 2005 Ombudsperson investigated two complaints on the ground of sexual orientation. The Ombudsperson issued a warning to stop discriminatory action. In 2006 two complaints were received and again a warning to stop discriminatory actions was issued in one case. In 2007 the number of complaints increased dramatically, due to public events of LGBT organizations, which were banned by municipality of Vilnius. However most of the complaints were inquiries and encouragements to act. In 2007 no biding decision were taken because the material was referred to investigate bodies or the complaint was dismissed, while the investigation was discontinued when objective information concerning the violation, which has been committed, was lacking. Out of 8 complaints regarding discrimination on the ground of sexual orientation in 2008, no breach antidiscrimination law was established. One decision of the Ombudsperson to discontinue investigation of the alleged discriminatory actions of Vilnius city municipality was challenged at the Administrative Court, which resulted in the second discrimination case in the legal practice, were sexual orientation was concerned.

2.16.2 Equal Rights 2.16.2.1 Anti-discrimination legislation                                                                                                                       576http://www.lrkt.lt/en/about-the-court/activity/history/188 577Article

 

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As mentioned above, the Constitution of Lithuania expressly declares in ar. 29 that all persons are equal before the law, the court, and other State institutions and officials. Human rights shall be implemented without discrimination on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views. Again, there is no mention about sexual orientation. This principle of equal opportunities and equal treatment is also stated in the laws of Lithuania: Law on Elections, Law on Referendum, Law on Public Service, Labour Code, Law on Safety and Health of Workers, as well as in many other laws concerning issues of employment and social protection. However, non-discrimination on the ground of sexual orientation is expressly mentioned in the Labour Law and the Law on Health and Safety at Work. Article 2 of the Labour Code provides the principles of legal regulation of labor relations, one of which is the equality of legal subjects irrespective of their gender, sexual orientation, race, nationality and other grounds. Article 129 provides also that the gender, sexual orientation, race, nationality and so on cannot be the lawful reason for the discontinuation of labor relations when there is no default of an employee. Following Article 3 of the Law on the Safety and Health at Work each employee is guaranteed of the safe and healthy working conditions irrespective of the citizenship of an employee, race, nationality, gender, sexual orientation, age, and social origin, political or religious beliefs. The new Criminal Code that entered into force in 2003 explicitly prohibits discrimination.578 The main anti-discrimination legislation in Lithuania consists of the Law on Equal Opportunities for Women and Men (1998, amended 2012) and the Law on Equal Treatment (2003, amended 2008).579 The Law on Equal Opportunities for Women and Men prohibits both direct and indirect discrimination against men and women and establishes a legal obligation for state and private institutions to implement gender equality principles in employment, education, science, etc. However, the law does not apply to family and private life. The Law on Equal Treatment in ar.1 states that “this Law is designated to ensure the application of the legal acts of the European Union, indicated in the Annex of this Law” (namely Directives 2000/43/EC and 2000/78/EC). The purpose of this law is to ensure the implementation of human rights as laid down in the Constitution of Lithuania, and to prohibit any direct or indirect discrimination based upon age, sexual orientation, disability, racial or ethnic origin, religion or beliefs. Article 1 of the law provides the definition of equal treatment as “implementation of the human rights which are laid down in international documents on human and citizens’ rights and in the laws of the Republic of Lithuania, regardless of the age, sexual orientation, disability, racial or ethnic origin, religion, beliefs and other grounds established in the international agreements or laws of the Republic of Lithuania”580. Although the Employment Framework Directive prohibits discrimination only in the field of employment and 578http://www.gender-equality.webinfo.lt/results/lithuania.htm 579http://www.legislationline.org/topics/country/17/topic/84 580http://www.legislationline.org/documents/id/16578

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occupation, in the Law on Equal Treatment, which transposed it, protection against discrimination on all grounds (including sexual orientation) is extended to the scope covered by the Race Directive, with the exception of social advantages and social protection. Thus people are protected against discrimination on the ground of sexual orientation in the fields of access to goods and services and education as well.581 On July 14, 2009 the Parliament adopted the Law on the Protection of Minors against Detrimental Effect of Public Information. The law defines public information, which might have a detrimental effect to minors, and sets the rules for its provisions to the public. Propagation of homosexual, bisexual and polygamous relationships, and information, which distorts family relationship and its values, were considered to be inter alia information with detrimental effect to minors. The law was widely criticized as the aforementioned provisions leave too much room for interpretation, which might be disadvantageous towards sexual minorities, the right to freedom of expression and information.582 Eventually the law was amended on December 22, 2009, excluding the notorious clause on homosexuality. The length debate around the adoption of this law and the arguments of its initiators unambiguously focused on possibility of banning agitation for homosexuality from schools and public life.583 The Parliament has recently approved (21st May 2013) an anti-gay draft law initiative concerning the Code of Administrative Violations. The proposal introduced administrative liability for “public denigration of constitutional moral values and of constitutional fundamentals of the family life, as well as organization of public events contravening public morality”. Since it is not the first time, that such initiatives are being made, it is highly likely that the draft will be blocked. However, if passed, the law would introduce a fine from 290-867 EUR for these activities.584

2.16.2.2 Family protection in Lithuanian legislation In the Constitution of the Republic of Lithuania the family is protected as a separate value. Article 38 of the Constitution states: “The family shall be the basis of society and the State. Family, motherhood, fatherhood and childhood shall be under the protection and care of the State. Marriage shall be concluded upon the free and mutual consent of man and woman (…)”. The recognition of the status of family as a constitutional value mandates the state authorities to care and provide for the family, ensure the family members’ Constitutional rights, and ensure respect for family life. Such duties fall on both legislative and executive authorities. However, the Constitution does not contain any definition of ‘family’ or ‘family members’. Nor does the jurisprudence of the Constitutional                                                                                                                       581E. Ziobiene (2008) Legal study on homophobia and discrimination on grounds of sexual orientation – Lithuania p. 11-12 http://fra.europa.eu/sites/default/files/fra_uploads/327-FRA-hdgso-NR_LT.pdf 582http://www.non-discrimination.net/content/media/LT-7the%20Law%20on%20the%20protection%20of%20minors.pdf 583http://www.non-discrimination.net/content/media/LT-143%20%20the%20Law%20on%20the%20protection%20of%20minors%20amended.pdf 584http://www.non-discrimination.net/content/media/LT-24-LT-232013_05_23_Flash%20report%20on%20Homophobic%20Draft%20law.pdf

 

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Court of the Republic of Lithuania reveal the content of these notions. Therefore there is lack of any official constitutional doctrine on what ‘family’ is. At this point, it is worth mentioning that the majority of leading political forces in Lithuania have chosen to follow the classical, conservative interpretation of the concept of family. The question of whether same-sex couples living together could be considered a family is altogether outside the scope of this discussion. According to one of the drafters of the Constitution, Professor Egidijus Jarasiunas:” We have to clearly distinguish between constitutional values and things that are tolerated…Nothing precludes or forbids a person from choosing other forms of cohabitation. Nevertheless, only a family which ensures the existence of society itself is constitutionally protected, because human rights make sense only in the context of society”. The main source of Lithuanian family law –the Civil Code- does not also provide an answer to the question what ‘family’ is. The code only provides a definition of marriage as “a voluntary agreement between a man and a woman to create legal family relations executed in the procedure provided for by law”. Furthermore, the Civil Code provides for the rights of a man and woman to live in registered partnership. There are also definitions of ‘family’ and ‘family members’ established by several laws, but they do not purport to be universal. Each of them is autonomous, i.e. applied only to relations regulated by the particular law. An important change took place when Seimas adopted the Resolution of 3 June 2008 ‘On the Approval of the State Family Policy Concept’, which established inter alia, an independent definition of family. According to the Concept, family is deemed to be ‘spouses and their children (including adopted), if any’.585

2.16.2.3 Recognition of same-sex relationships Same-sex marriages are not legal in Lithuania. According to Lithuania’s Civil Code, Article 3.7 provides that “Marriage is a voluntary agreement between a man and a woman to create legal family relations executed in the procedure provided for by law”. In addition to that, Article 3.12 explicitly prohibits samesex marriages, as a “marriage shall be contracted only with a person of the opposite gender”.586 It is clear, therefore, that same-sex couples are not treated equally in comparison to opposite-sex couples. This situation creates problems to family reunification. According to the Law on the Legal Status of Aliens, persons are given the right to family reunification if they are granted status and receive a permanent residence permit. Family members who can enter and reside are defined in the law. This right is recognized to the spouse or the person who has concluded a partnership agreement, the children of the couple or of one of them below 18 years of age, on condition that they are unmarried and dependent, as well as, relatives in the direct ascending line who have been dependent for at least one year and are unable to make use of the support of other family members residing in a foreign country. It is not clear if an LGBT person who has received refugee status in the Republic of Lithuania could exercise his or her right to reunify with the                                                                                                                       585G.

Sagatys (2010) The concept of family in Lithuanina Law, MykolasRomeris University, Faculty of Law

586http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=245495

 

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partner bound to him or her in a registered partnership. However, the official position of the Migration Department of the government of the Republic of Lithuania is that neither marriage nor partnership between same-sex persons can be legally recognized in Lithuania.587 Lithuanian laws do not recognize registered partnership either between a man and a woman or between people of the same sex.588 Currently the Civil Code of the Republic of Lithuania, which came into force in 2001, provides a form of cohabitation without marriage as a precondition of registering a partnership, but in reality the provision is not implementable, because the law on registered partnerships is yet to be adopted. On 25 March 2015, 9 members of the parliament from the Social Democratic Party and the Liberal Movement introduced the partnership bill. The bill was about to introduce the institution of partnership into the country’s Civil Code, but only to opposite sex-couples, as according to Justice Minister, there was no need to legalize same-sex partnership because there were hardly any same-sex couples in Lithuania.589 This blanket rejection of a gender neutral bill to allow civil partnerships was criticized by Human Rights Watch, as it contravenes European standards. As a party to the European Convention on Human Rights and as a members of the Council of Europe, Lithuania, an EU Member State, is bound by the rulings of the European Court of Human Rights and Council of Europe positions.590 However, the civil partnership bill was rejected from the Lithuanian Parliament, even for the same-sex couples. On October 14th 2015, 27 members of the Parliament voted in favor of the proposed legislation, 25 voted against and 16 abstained.591 The representatives of the Ministry of Justice of the Republic of Lithuania claimed that the proposed legislation acknowledged the existing forms of cohabitation, while the opponents insisted that the civil partnership is “an encroachment on the institution of marriage” and is “just one step away from legalizing same-sex partnerships”. In addition to that, the same day the Parliament also considered a proposal by a group of legislators to exclude the possibility of registered partnerships from the Civil Code of the Republic of Lithuania all together. At the moment Lithuania, together with other 7 Member States of the EU, does not legally recognize same-sex relationships. The legal status of cohabitating same-sex couples is not defined and they cannot make use of opportunities available for married couples, ranging from inheritance rights to receiving information about partner’s health condition at medical establishments in case of an illness. As for the adoption of a child, Lithuania’s Civil Code states that the right to adopt a child may be exercised by married couples. Unmarried persons may not adopt the same child, while in                                                                                                                       587 E. Ziobiene (2008) Legal study on homophobia and discrimination on grounds of sexual orientation – Lithuania p. 11-12 http://fra.europa.eu/sites/default/files/fra_uploads/327-FRA-hdgso-NR_LT.pdf 588http://europa.eu/youreurope/citizens/family/couple/registered-partners/index_en.htm 589http://en.delfi.lt/lithuania/politics/lithuanian-justice-minister-same-sex-couples-are-more-propaganda-thanreality.d?id=68150652 590https://www.hrw.org/news/2015/06/11/lithuania-include-same-sex-couples-partnership-bill 591 http://www.lgl.lt/en/?p=11215

 

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exceptional cases, an unmarried person or one of the spouses may be allowed to adopt a child592. On May 21st 2013, the parliament approved an anti-gay draft law initiative on the issue of adoption. The draft amendments to the Law on the Fundamentals of protection of the Rights of the Child seek to establish that during adoption or foster care procedure the priority is given to the need of a child to have opposite-sex parents, bearing the duties of fatherhood and motherhood in the family. The draft proposal also offers a surprisingly wide-ranging provision preventing the State “to adopt laws providing rights to persons, which would result in taking away the right of a child to have a father (adoptive father) and mother (adoptive mother)”. It is highly likely, however, that such wording would be considered as unconstitutional.593

2.16.3 National policy regarding homosexuals and same-sex couples 2.16.3.1 Political discussion regarding second parent adoption or joint adoption Given the absence of legal recognition of same-sex couples, there is no political discussion regarding of second parent adoption or joint adoption.

2.16.3.2 Society’s awareness towards rights of homosexuals The latest surveys on attitudes toward homosexuality in Lithuania demonstrate development toward a more accepting society, particularly in the acknowledgment of human rights for LGBT persons. Sixty-five per cent of Lithuanians agreed that homosexuals should have same opportunities in the labour market as heterosexuals, and 42 per cent agreed that the law should defend homosexuals from workplace discrimination. Prevailing attitudes, however, remain homophobic.594 The LGBT community faces social and political hostility. Homophobic attitudes in society are shown in several recent surveys, which indicate that only around twenty-three per cent of gay men are open about their sexuality, that only four per cent of the population support registered partnerships for same-sex couples, and that sixty-two per cent of Lithuanians object to a Gay Parade being held in Lithuania.595 Additionally, according to other surveys forty-seven per cent of Lithuanians think that homosexuality should be treated medically, while sixty-two per cent would not want to be a member of an organization that accepted LGBT members. It seems from the above that Lithuania is one of the least LGBT-friendly countries in Europe.596

                                                                                                                      592592Article

3.210 Civil Code of the Republic Of Lithuania

593http://www.non-discrimination.net/content/media/LT-24-LT-23-

2013_05_23_Flash%20report%20on%20Homophobic%20Draft%20law.pdf 594The Social situation concerning homophobia and discrimination on grounds of sexual orientation in Lithuania (2009) http://fra.europa.eu/sites/default/files/fra_uploads/382-FRA-hdgso-part2-NR_LT.pdf 595http://www.lgl.lt/en/?page_id=199 596Sexual Orientation and Gender Identity Working Group (2015) Lithuania-Country report for use in Canadian refugee claims based on persecution on the basis of sexual orientation for gender equality, University of Toronto

 

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While data shows that attitudes remain largely the same, many agree that debates are proof that a change may be coming, albeit slowly. Lithuania has recently started discussing its attitudes towards homosexuality. The discussions were largely sparked by Lithuanian DJ Ten Walls who recently equated homosexuals with paedophiles. His comments caught the intention of international media and received a lot of criticism causing numerous debates about the way that LGBT people are being treated in Lithuania. However, it will take more than a few public statements to change ingrained attitudes.597

2.16.3.3 National Non-Governmental Organisations working on homosexual rights The only Non-Governmental Organisation related to the LGBT community and its rights is Lithuanian Gay League (LGL). It is a national, non-profit organisation uniting homosexual, bisexual and transgender persons and a member of the International Lesbian and Gay Association (ILGA) since 1994. It is also a member of the National Equality and Diversity Forum and the Human Rights Coalition, while it takes part in international cooperation within the framework of international umbrella organisations such as EPOA (The European Pride Organizers Association), FRA (Fundamental Rights Agency Civic Society and Fundamental Rights Platform) and others. LGL is an advocacy organisation totally independent form any political or financial interests dedicated to fighting homophobia and discrimination based on sexual orientation and gender identity. Through education, support, and representation of the LGBT community, LGL promotes an inclusive social environment for gay men, lesbian women, bisexual and transgender persons. To reach its vision of an inclusive and open Lithuanian society and equal rights for LGBT people, LGL carries out various projects with both national and international partners. The biggest project for LGL was in 2013 the Baltic Pride. During the Rainbow Days in 2015 LGL presented at a press conference at the parliament the “Action Plan on Non-Discrimination of LGBT People 2015-2020, Lithuania”. It is a plan recently created to provide recommendations for upholding the principles of non-discrimination and full acceptance of LGBT people in Lithuania, while also taking into account the community’s current status in the country. It is hoped that this publication will draw the attention of policy-making and policyimplementing public authorities to the problems that LGBT individuals face on a daily basis, and encourage the formation and implementation of coherent anti-discrimination strategies at the state level598.

2.16.3.4 Social and political reasons for the absence of legal recognition

597http://www.lgl.lt/en/?p=10314 598http://www.lgl.lt/en/?p=9529

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The homophobic discourse in Lithuania could not be described as nuanced or politically correctit is rather straightforwardly hateful and seeks to humiliate and dehumanize individuals on grounds of their sexual orientation. Several politicians, who are using homophobic rhetoric in order to secure the support of their constituencies, overtly employ the vocabulary of disgust, perverseness and ‘homosexual propaganda’. It could be by no means argued that the hateful rhetoric is employed by public authorities or more mainstream politicians as well. However, the public discourse is still massively shaped by the voices of hate. The Lithuanian authorities were heavily criticized in the report on the implementation of the CoE’s Recommendation CM/Rec (2010)5 for their passivity in taking any positive measures in order to combat discrimination and social exclusion, faced by LGBT community in Lithuania. The homophobic rhetoric in Lithuania is characterized by three salient features. First of all, it is directed not only against alleged attempts to undermine the traditional Lithuanian family, but also against any public visibility of alternative sexualities. Secondly, the hostile attitudes are setting the tone to the public discussion, because the voices of support for LGBT community are virtually absent from the public sphere. Finally, the anti-gay prejudices embody the more general anti-EU sentiments, thus fostering the idea that gay rights are enforced upon the Lithuanian society by external agencies.599 The situation described above explains why the Vilnius’ second-ever Pride March was subjected to intense and judicial debate. Political opposition to the Baltic Pride started before organisers announced a date for the event, because municipality of Vilnius said that there was a ‘high probability of incidents and threat to public peace, morals and public safety, regardless of high police presence’.600 The municipality opted to ban the event, but eventually the Regional Administrative Court, after the appeal submitted by the LGL, found against the municipality and ordered it to allow the event in the city center.601 However, protesters tried to disrupt Lithuania’s second gay pride parade defying an enormous police presence by throwing eggs at marchers and attempting to storm a stage.602 In July, the UN Human Rights Committee urged Lithuania to ensure that its legislation is not interpreted and applied discriminatorily against people based on their sexual orientation or gender identity, and to guarantee that they enjoy all their human rights, including the rights to freedom of expression and assembly. The Committee further urged Lithuania to continue investigations into alleged human rights violations resulting from counter-terrorism measures and to bring those responsible to justice.603

599T. Raskevicius (2012) Emerging European Consensus on legal recognition of same-sex relationships: A comparative study of Lithuania and Ireland, Central European University, Department of Legal Studies 600http://archive.globalgayz.com/europe/lithuania/lithuanian-court-rules-pride-can-go-ahead/ 601ILGA Europe (2014) Annual Review of the human rights situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe http://www.certidiritti.org/wp-content/uploads/2014/05/Annual-Review-2014-web-version.pdf 602http://archive.globalgayz.com/europe/lithuania/protesters-try-to-disrupt-lithuania-gay-pride/ 603http://www.amnestyusa.org/research/reports/annual-report-lithuania-2013

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To sum up, the intolerance of the Lithuanian’s society and the inadequate protection of constitutional rights of homosexuals, as mentioned above, as well as the homophobic speech produced by several politicians in Lithuania, consist the main reasons for the absence of legal recognition of same-sex couples.

2.16.4 Summary In conclusion, same-sex couples are not treated equally in comparison to opposite-sex couples. Lithuanian legislation does not provide them the right to marry, register or adopt children. Samesex marriage is even prohibited according to the Lithuanian Civil Code. Great efforts will be needed in order to diminish the existing inequality towards this part of population, as the politicians do not seem very eager to work on the same-sex couples’ rights.

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2.17 Luxembourg Written by Iga Mlynarczyk

2.17.1 General principles of jurisdiction Situated in the heart of Europe, bordered by Belgium, France and Germany, the Grand-Duchy of Luxembourg is one of the most multinational countries in the world. On a surface of 2,586km2 approximately 563.000 inhabitants604, of whom 46% are foreigners from 170 different nationalities. Thus, Luxembourg differs from the other countries of Europe with its ethnic, linguistic and cultural diversity. Founded in 963, through centuries Luxembourg belonged successively to the Counts and Dukes of Luxembourg, the Dukes of Burgundy, the Kings of Spain, the Kings of France, the Emperors of Austria and the Kings of the Netherlands, to finally gain independence in 1839 under the Treaty of London. Luxembourg has its significant chapter in the European Union history. In 1886, Robert Schuman, the 'father of Europe', was born in Luxembourg.605 In 1957, together with Belgium, the Netherlands, Italy, Germany and France, Luxembourg signed the Treaties of Rome and became one of the founding member of the European Union. Moreover, Luxembourg is a founding member of OECD, United Nations, NATO, and the Benelux Union. Luxembourg is a constitutional monarchy functioning as a parliamentary democracy. It is governed by the Grand-Duke Henri as the Head of State and the prime minister, Xavier Bettel, as the Head of Government. Similarly, to other modern democratic states, there is a separation between executive, legislative ad judiciary powers. The legislative power is shared by the Parliament, the government and the Council of State. Executive power belongs to the Grand-Duke and the government with its responsible members. The courts and tribunals are responsible for exercising the judicial power, which is independent from two other powers. The legislative elections take place every five years and over past decades resulted in coalitions between two of the three main political parties (the Christian-Social People's Party, the Luxembourg Socialist Workers’ Party and the Democratic Party). Luxembourg has two types of jurisdictions, i.e., Civil courts and Administrative courts. Independently, a Constitutional Court has been established to safeguard the compliance of the Constitution.

http://www.luxembourg.public.lu/en/le-grand-duche-se-presente/luxembourg-tour-horizon/fichedidentite/index.html 605 About... History of the Grand Duchy of Luxembourg, Guy Thewes, Information and Press Service of the Government 604

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The Constitutional Court has its seat in Luxembourg city, the capital of the country, and is composed of nine members606. It is competent to verify and rule on the constitutionality of laws, with the exclusion of the ones ratifying the treaties. If a party to proceedings questions the constitutionality of a law before a judicial or administrative jurisdiction, the matter must be referred to the Constitutional Court if the issue of constitutionality is deemed essential to bring the dispute to a solution. Individuals have no possibility of appeal to the Constitutional Court. The Constitutional Court conducts concrete constitutional reviews a posteriori. Its judgements are published in the Mémorial, which is the Official Journal of the Grand-Duchy of Luxembourg. A body that can be directly approached by the individuals seeking for the protection of their rights is the institution of the Ombudsman, that was introduced by the law of 22 August 2003607. The Ombudsman is designated for a non-renewable term of 8 years further to the nomination accepted by a simple majority in the Chamber of Deputies. The Ombudsman is an independent body which cannot receive instructions from any authority. It is not bound by the orders of any administration, nor the government. The Ombudsman's mission is to receive complaints from individuals or legal persons, with regard to a case concerning them, and relating to the functioning of administration (i.e., governmental or municipal services). It can make inquiries to the authorities, consult requested documents and interview the officials concerned. If needed, the Ombudsman can give his recommendations to the authorities concerned, in order to reach an amicable solution to a case. The service is free of charge. Any private individual, of whatever nationality, can directly address the Ombudsman personally or indirectly through a Member of Parliament. Beforehand, the necessary steps against the administration must have been undertaken. Written complaints can be submitted in Luxembourgish, French, German and English. Verbal complaints can also be submitted in another foreign language under the condition that the person filing the complaint is accompanied by an interpreter. The complaint brought before the Ombudsman does not interrupt or suspend the period of appeal against a decision of the administration. Since 25 July 2002, there exists an equivalent of Ombudsman for minors. The Ombuds Committee for Children's Rights (ORK) is a neutral and independent institution to promote the Convention on the Rights of the Child in Luxembourg and to ensure that it is respected. The ORK's mission is to give its opinion on draft laws and regulations concerning children's rights, inform about the children’s situation and ensure the application of the Convention on the Rights of the Child, make recommendations on possible mediation and receive information and complaints from individuals and give advices in order to ensure the best possible protection for children.

                                                                                                                      606 the president of the Supreme Court of Justice, the president of the Administrative Court, two judges at the Court of Cassation and five judges appointed by the Grand Duke. 607 Mémorial A N° 128 du 03.09.2003

 

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In 1995, Luxembourg established a Ministry of Equal Opportunities (Ministère de l'Egalité des chances). The Ministry’s activities focus primarily on the equal participation of women and men in the following areas: − education and training: promoting awareness of stereotypical roles of girls and boys and their choice of occupations608, 609 − work and employment: equality of pay and salary , 610 − action against violence, in particular measures to end domestic violence . The Centre for Equal Treatment (CET) is broader in its scope of interest. It was created by the law of 28 November 2006. The CET carries out its missions independently, and its purpose is to promote, analyse and monitor equal treatment between all persons without discrimination on the basis of race, ethnic origin, sex, sexual orientation, religion or beliefs, handicap or age. The CET publishes reports, issues opinions and recommendations, and carries out studies on all matters relating to discrimination in the broadest sense of the term. It can provide assistance to the victims of discrimination by providing them with advice and information regarding their individual rights, the legislation and the available means for claiming their rights. Consultative Commission of Human Right has been established by the law of 21 November 2008611. Its mission is the promotion and protection of human rights in the Grand-Duchy. It advises the Luxembourg government by providing it with reviews, studies, position papers and recommendations that the consultative Commission of Human Right develops independently or at the request of the government. An interesting tool available for each individual wanting to attract the attention of authorities to a particular issue and looking for a political debate is the petition. The right of petition is one of the fundamental rights of citizens. Article 27 of the Constitution states: "Everyone has the right to address the public authorities by means of petition signed by one or more persons." If a petition obtains minimum of 4,500 signatures, a public debate has to be organised by the Committee on Petitions and the committee responsible for the subject in question. The petitioner is actively involved and may be accompanied by up to five other people. The debate is also attended by the competent Minister and is broadcasted by the TV channel of the Parliament. The public and the press are free to attend the debate which takes place in Parliament. If the threshold of 4,500 signatures is not reached, the petition may be treated as an ordinary petition and will be assessed by the Committee on Petitions. Deputies can raise the questions to the government on the subject. As almost half of Luxembourg’s population are foreigners, it is crucial for the State to prevent the discrimination based on the nationality or ethnic origins. The Luxembourg Reception and                                                                                                                       (www.girls-day.lu and www.boys-day.lu) (www.cet.lu); 610 www.violence.lu). 611 Mémorial A N° 180 du 10.12.2008 608 609

 

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Integration Agency (OLAI) is a public agency under the auspices of the Ministry of Family, Integration and Grand Region that is in charge of implementing the reception and integration policy. The Law of 16 December 2008612 on the reception and integration of foreigners in the Grand-Duchy of Luxembourg gives the OLAI legal competence to fight against all forms of discrimination and implement a National Action Plan for Integration and Against Discrimination.

2.17.2 Equal rights Luxembourg transposed all European Directives concerning equality in their domestic laws, i.e. Directives 76/207/CEE, 2002/73/CE, 2000/43/CE, 2000/78/CE, 2004/113/CE. The law of 28 November 2006613, the law of 21 December 2007614 and the law of 13 May 2008615 on equal treatment applies to both, individuals and legal persons, including public institutions. It regulates equal access to employment, professional orientation, social protection, social benefits, education and access to goods and services. Based on the law, any non-profit association recognised at national level, the statutory mission of which is the fight against discrimination and that has received prior ministerial approval, can appear before civil or administrative courts for the purpose of exercising the rights assigned to the victim of discrimination when it serves to the collective interests defended by that association. If an act of discrimination has been committed against an individual, the non-profit association can exercise the rights assigned to the victim only upon written prior approval of the latter. In Luxembourg, according to the population census in 2011 done by STATEC616, 45.2% of the residents live together as a couple. Among these people, the majority (88.1%) is married, while 9.1% live together on an informal basis and 2.7% have entered into a civil union (PACS)617. Since the 21st century, the number of weddings is decreasing each year, while the number of divorces is increasing.618 More and more young people choose for a partnership instead of marriage. A partnership is a civil union of two people. The civil union (PACS) was introduced by legislation passed on 9 July 2004. It provides legal certainty in civil, fiscal and social security matters for two people. The partners must appear personally before the Registrar of the municipality of their residence and                                                                                                                       Mémorial A n° 209 du 24.12.2008 Mémorial A n° 207 of 06.12.2006 614 Mémorial A n° 232 of 21.12.2007 615 Mémorial A n° 70 of 26.05.2008 616 STATEC (Institut national de la statistique et des études économiques du Grand-Duché de Luxembourg) is administrative body under supervision of Ministry of Economy. 617 http://www.statistiques.public.lu/fr/population-emploi/rp2011/menages/index.html 618 Opinion of the Legal Committee in the draft law n° 4110 of 25 March 2004 on the civil union 612 613

 

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declare jointly their partnership. Since the beginning, it was available to couples of the same or of different sex. The aim of PACS is to enable the partners to benefit from largely similar rights as those available to married persons. Partners enjoy the same legal protection as married people (i.e., right of residency to non-EU partner, right to pension to a surviving partner), and enjoy the same tax allowances as married people. In the judgment of Administrative Tribunal from 3 October 2005, it has been confirmed that since a civil union between same sex couples has been accepted by law, homosexual couples should be granted the same rights as heterosexual couples. This means, for example, that a third country national having a same sex Belgium national registered, both living in Luxembourg, should be granted right of residence in Luxembourg.619 Introduction of the homosexual marriage The will to enlarge the scope of marriage and make it available to the same sex couples is nothing recent. However, only until recently, there wasn't a predominant political willingness and support to legalise same sex marriage. One of the reasons, or so to say excuses, to deny same sex marriage was the introduction of PACS.620 Over the years, several draft laws has been rejected,621 and the discussion on allowing same sex marriage was ongoing. However, in 2012 when a new coalition came to government, there has been a visible development and progress in this area. The marriage reform was part of the government's plan to create an egalitarian society by opening to same sex couples an opportunity to get married. Marriage for same-sex couples was voted June 18, 2014 in the Chamber of Deputies, and the law has been published on 17 July 2014. It entered into force on 1 January 2015. This reform equalises homosexual and heterosexual couples by giving the former the right to marry and adopt children. It results in full equality in terms of the rights and duties of couples, the recognition of marriages contracted abroad, the dissolution of a union, the provisions on donations and the right of succession. Moreover, the legislator aligned the wording used in other legislative acts, like the civil code for instance. Where applicable, the reference is made to “mothers” or “fathers”, replacing the terms "husband and wife" with those of "spouses". As a result of the passed laws, Article 143 of the Civil code provides that the marriage can be concluded by the people of either different or same sex. According to Articles 170-171 of the Civil code, the marriage contracted abroad can be legally recognised in Luxembourg if it fulfils all the conditions required under Luxembourg law. Moreover, Luxembourg authorities cannot

                                                                                                                      TA, 3 October 2005, n° 19509 Opinion of the State Council in draft law n° 4162 and 4110 from 2000 621 Report of the Legal Commission of 17 March 2004, in draft law n° 4162 619 620

 

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refuse to marry same-sex couple on the sole basis that the national law of one of the two future spouses prohibit such marriage.622 There are two types of adoption under Luxembourg law: so-called full adoption and simple adoption. Simple adoption maintains affiliation with the biological family, but the adopted acquires in the new family the same inheritance rights as a biological child. Anyone over the age of 25 years may apply for simple adoption. Simple adoption may be revoked. Full adoption is irrevocable and the affiliation with the biological family is terminated. It cuts any legal link between a child and its biological parents. According to Article 367 of the Civil Code, only married couples are allowed to undertake a full adoption. It is possible for one spouse to adopt the other spouse's child. In 2007623, Luxembourg has been condemned by the European Court of Human Rights (ECHR) for a violation of the Convention. In that case, a Luxembourg single mother that adopted a 3 year old Peruvian girl, requested the recognition of an Peruvian adoption judgment from 1996. In 1999, the court of first instance dismissed the application, on the ground that the full adoption was not available to a single woman under Article 367 of the Luxembourg Civil code. The ECHR decided that this judgment was in violation of Article 8 (right to respect for family life) on account of the failure of the Luxembourg courts to recognise the family ties created by the judgment of full adoption delivered in Peru and in violation of Article 14 (prohibition of discrimination). As a result, in a judgment of 16 December 2009 (No. 35197 of the role), the Appeal Court judged a full adoption of a minor by a single person to be legal and enforceable. Nevertheless, the article of the Civil code has never been amended to reflect this decision. In 2013, during the preparation on a draft law on the marriage reform, the idea was to restrict full adoption just to heterosexual marriages, however on 4 June 2013 State Council gave its negative opinion on such a differentiation. Consequently, the amendment was rejected624 and the right to adopt children is equal to both same-sex and heterosexual couples. However, the reality is that homosexual couples may still encounter bigger issues when trying to adopt children. In its opinion of 22 November 2010, the Centre for Equal Treatment (CET) expressed its opinion that a full adoption will be always remain more difficult for same sex couples for several reasons: the low number of children to adopt in Luxembourg and the fact that international adoption by homosexual couples is permitted only by a few countries of origin. Moreover, many countries are increasingly reluctant to grant an adoption in favour of thirdcountry adopters. This decrease is observed for several years and for the reason that more and more countries have ratified the Hague Convention, which provides that children should be given priority to be adopted in their own country.                                                                                                                       Draft law n 6172A, of 17 June 2014 Judgment of 28.6.07, n° 76240/01 624 Draft law n 6172A of 15 April 2014 622 623

 

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Additionally, there has been a few areas that have not been changed and where still the differentiation can be seen. Article 312 of the Civil code provides for the presumption of paternity generated by marriage. However, this presumption applies only to heterosexual couples. For the couple composed of same sex spouses, the marriage does not create parental rights. The basis for this exception is based on an undeniable biological reality.

2.17.3 National policy regarding homosexuals and same-sex couples Based on the recent legislation, it can be said that the State supports the same-sex couples’ rights and puts principle of equality in life. At the national level, there are two non-profit organisations that fight for the homosexuals’ rights. The ROSA LËTZEBUERG aims to promote civil rights and fight against discrimination of homosexual and bisexual citizens. It works on social, cultural and legal plans for full equality and organises cultural and social activities in favour of homosexuals and bisexuals. Intersex & Transgender Luxembourg is representing transgender community. On 4 May 2015, it sent an open letter to the Chamber of Deputies, asking the Luxembourg Parliament to implement "urgently" the recommendations of the European Parliament625 and the Parliamentary Assembly of the Council of Europe concerning transgender people.

2.17.4 Summary Based on the above findings, it can be stated that Luxembourg is one of the countries that granted a full legal equality to same sex couples in terms of access to different forms of unions and in terms of adoption of children. As Luxembourg society is multinational and multicultural, the issues of discrimination are not the most recurring ones. The society is globally tolerant and open-minded and it embraces diversity. On 15 May 2015, Luxembourgish prime minister, Xavier Bettel, married his partner, Gauthier Destenay, an architect from Belgium, becoming the first European Union leader – and only the second worldwide leader – to marry someone of the same sex.626

625 On 12 March 2015, the European Parliament adopted a resolution on the 2013 annual report on human rights and democracy in the world and EU policy on the matter in which he "encourages States to up fast gender recognition procedures, accessible and transparent that respect the right to self-determination " 626 http://www.theguardian.com/world/2015/may/15/luxembourg-prime-minister-eu-xavier-bettel-gauthierdestenay-gay-marriage

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2.18 Malta Written by Eva Verdonk627

2.18.1 General principles of jurisdiction Malta, officially the Republic of Malta, is situated in the Central Mediterranean Sea and comprises of five islands. Its location has historically given it great strategic importance as a naval base, and a succession of powers has ruled the islands. After the British assisted the Maltese to expel the French, Malta was part of the British Empire for over 150 years.628 After World War II, the movement for self-determination grew stronger and Malta acquired independence on the 21st of September 1964. The new constitution made Malta a parliamentary democracy within the British Commonwealth, meaning that a governor general exercised executive authority on behalf of the sovereign. On the 13th of December 1974, nowadays celebrated as ‘Republic Day’, Malta declared herself a republic. Article 1 of the Constitution reflects its then acquired status: ‘Malta is a democratic republic founded on work and on respect for the fundamental rights and freedoms of the individual’.629 Malta’s parliamentary republic is closely modelled on the Westminster system. Every five years, the people of Malta directly elect members of the House of Representatives, which is the unicameral national parliament. The House of Representatives appoints a President (head of government) for a five-year term.630 The President in turn appoints one of the members of the House of Representatives as prime minister (head of state).631 There are 68 local councils.632 Human rights are codified in the Maltese Constitution. Since the adoption of the constitution in 1964 it has been amended 25 times, most recently in 2014 to include gender identity in the antidiscrimination provision.633 With regard to protection of human rights, individuals can turn to the Civil Court First hall. This court has exclusive jurisdiction concerning human rights.634 Once the court issues a decision, either of the parties may appeal to the Constitutional Court. The procedure is regulated by the ‘Court Practice and Procedure and Good Order Rules’.635 This Act states that proceedings before the Civil Court First Hall and the Constitutional Courts, under their jurisdiction as human rights courts, can be initiated by any individual or legal person who 627

Eva  Verdonk  is  an  undergraduate  student  (LLB  Tax  law)  at  the  University  of  Amsterdam   Britisch period in Malta – Britisch legacy | Visit Malta (2016, March 20). Retrieved from http://www.visitmalta.com/en/british-period 629 Article 1 Constitution of Malta 630 Article 48, paragraph 1 Constitution of Malta 631 Article 80 Constitution of Malta 632 Chapter 363: Local Council Act 633 Article 45, paragraph 3 Constitution of Malta 634 Article 46 Constitution of Malta 635 Chapter 12: Code of Organization and Civil Procedure 628

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thinks that the rights set forth in either the Maltese Constitution or the European Convention for the Protection of Human Rights and Fundamental Freedoms have been breached. In order to start a procedure, this person must file a judicial application which outlines the facts which have led to the filed complaint and also indicates the provision(s) of the Constitution of Malta or of the European Convention for the Protection of Human Rights and Fundamental Freedoms alleged to have been, to be or likely to be contravened.636 Even though the Constitutional Court has jurisdiction to hear and determine cases regarding the European Convention of Human Rights, the final interpretation of this document falls within the competence of the European Court of Human Rights. Anyone affected by the actions of a signatory state may also apply to the European Court of Human Rights itself, but only after they have exhausted all domestic remedies.637 Besides appellate jurisdiction in the aforementioned cases, the Constitutional Court has original jurisdiction in certain cases, in accordance with Art. 95 Constitution. Malta has been a member of the European Union since May 2004.638 Therefore, the citizens of Malta are also protected by the Charter of Fundamental Rights of the EU. Individuals may appeal to the European Court of Justice through the subsidiary General Court. Apart from recourse to action before the courts, there are various other bodies where an alleged victim of a human right breach can address his or her complaint. The body that has the most wide jurisdiction is the National Commission for the Promotion of Equality for Men and Women (NCPE). Anyone who believes to have been a victim of discrimination basis of one of the grounds listed can submit a complaint.639 However, the competences of the NCPE are limited. It may mediate or call upon a person to redress the situation but its decisions are not binding or enforceable. Other bodies that protect human rights include the Industrial Tribunal, the National Commission for Persons with Disability, the National Commission for the Promotion of Equality for Men and Women, the Public Service Commission, the Ombudsman, the Broadcasting Authority, and the Employment Commission.640

2.18.2 Equal rights 2.18.2.1 Individual protection of human rights This part of the paper will give a general overview on the status of the internal protection of human rights. The Maltese legislation concerning discrimination will be discussed as well as the situation in practice. Article 3 Court Practice and Procedure and Good Order Rules Article 35 European Convention on Human Rights 638 EUROPE – Malta in the EU (2016, March 20). Retrieved from http://europa.eu/about-eu/countries/membercountries/malta/index_en.htm 639 Complaints (2016, March 20). Retrieved from http://ncpe.gov.mt/en/Pages/Complaints.aspx 640 Malta - Country report (2016, March 20). Retrieved from http://www.equalitylaw.eu/country/malta 636 637

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Human rights are in the first place codified in the Maltese Constitution. Chapter IV: Fundamental Rights and Freedoms of the individual demonstrates the obligation of the Maltese government to safeguard and promote the fundamental rights and freedoms of individuals. The rights mentioned in this chapter are judicially enforceable. Most important in the respect of this paper is the anti-discrimination provision of Art. 45 Constitution. Sub-article one prohibits the government from making laws containing provisions that are discriminatory either of itself or in its effect. By exception, the government is allowed to make discriminatory laws with respect to matters of personal law. That is however not allowed if this provision is discriminatory of itself or in its effect by affording different treatment to different persons attributable wholly or mainly to their respective description by sex.641 The principles and regulations set forth in the Constitution form the basis for other subsequent laws. Chapter II: Declaration of Principles, deals with a number of principles that are not enforceable in any court. It shall be the aim of the State to apply these principles in making laws.642 Maltese citizens are not only protected on the basis of national law but they are also protected by international treaties. Malta is a signatory of the main treaties for the protection of human rights, including the ECHR and all additional protocols but number twelve. In respect of international treaties, Malta takes a dualist approach.643 The ‘Ratification of Treaties Act’ provides that provisions on the status of Malta under international law or the maintenance or support of such status are to be ratified by an Act of Parliament. Human rights provisions, whether originating from an international or domestic source, can subsequently be directly invoked before domestic courts in the same way. All Maltese legislation must be in accordance with Malta’s international obligations and is only enforceable to the extent that it does.644 To illustrate, the European Convention of Human Rights was signed in 1966645 but was only fully ratified in 1987 by the creation of the European Convention Act.646 Furthermore, human rights are protected by the Charter of Fundamental Rights of the EU. As an exception, European Union Regulations are directly applicable,647 have supremacy over domestic law648 and confer rights that can be invoked before domestic court. A number of entities and organizations work on discrimination issues in Malta. NGO’s are positive about the level of individual protection and equal rights in Malta since the legal developments of 2014. The 2015 Rainbow Map of ILGA-Europe Malta shows an improvement of 8 places (11th in 2014) with an overall score of 77% (57% in 2014). Amnesty International                                                                                                                       Article 45, paragraph 4c Constitution of Malta Article 21 Constitution of Malta 643 Ivan Sammut, The EU and Maltese Legal Orders: What kind of Marriage between them?, page 98 644 Article 65, paragraph 1 Constitution of Malta 645 Council of Europe Country Information (2015, May 10). Retrieved from http://www.echr.coe.int/50/en/#countries-infos 646 Chapter 319: European Convention Act 647 Da Costa en Schaake NV and Others v Administratie der Belastingen, C-28/62, C-29/62 and C-30/62, EU:C:1963:6 648 Flaminio Costa v ENEL, C-6/64, ECLI:EU:C:1964:66 641 642

 

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mentions that legal developments in the year 2014 have taken place in the field of gender discrimination and discrimination on the ground of sexual orientation.649 She however expresses her concern about the rights of refugees. The UN Human Rights Committee expresses concern about the compatibility of the absolute prohibition to have an abortion with the right to life, when an abortion is necessary to save the life of the woman. Eurobarometer is a survey that looks into attitudes and perceptions of Europeans towards discrimination based on different grounds (gender, ethnic origin, religion or beliefs, age, disability, sexual orientation and gender identity) and citizens' opinions on different policy measures to combat discrimination.650 From the results of the 2015 survey, it is found that discrimination on the ground of ethnic origin, gender identity and sexual orientation are perceived as most widespread. Policies combatting different kinds of discrimination are rated as ‘effective’ by 45% of the respondents and 86% think additional measures should be introduced. It can be seen that 40% of respondents think that someone’s sexual orientation (gay, lesbian or bisexual) sets someone at disadvantage when applying for a job (average in EU is 34%). On the other hand, 61% of respondents would feel totally comfortable hiring such person (average in EU is 54%).

2.18.2.2 Recognition of relationships/family protection Maltese law doesn’t contain a definition of the term family. Title 1 of the Civil Code presumes that a family is made up of two spouses with possibly one or more children.651 The fact that marriage is not available for same-sex couples,652 suggests that marriage would be defined as something between a man and a woman, if it were to be defined. Same-sex couples do however have access to civil union since the latest amendment of the Civil Unions Act in 2014.653 According to the most recent data of the United Nations Economic Commission for Europe the average marriage age in Malta is now 30 for men and 27 for women.654

2.18.2.3 Recognition of homosexual relationships Even though same-sex activity was legalised in 1973, it wasn’t until April 2014 that same-sex couples acquired a way to have their relationship legally recognised. On April 4th, the Parliament passed the Civil Unions Act, granting same-sex couples the same rights as heterosexual couples have in a civil marriage. Partners are thus allowed to jointly adopt children, with the same rights                                                                                                                       Amnesty International Report 2014/2015. The State of the World’s Human Rights. Amnesty International Ltd. London. 650 Eurobarometer | Discrimination in the EU in 2015. Retrieved from https://opendata.europa.eu/en/data/dataset/S2077_83_4_437_ENG 651 Chapter 16: Civil Code 652 Chapter 255: Marriage Act 653 Article 3, paragraph 2 Chapter 530: Civil Unions Act 654 Kristina Chetcuti (2014, February 2). Half of 25-34 year-olds still living with parents. Times of Malta. Retrieved from http://www.timesofmalta.com/articles/view/20140202/local/Half-of-25-34-year-olds-still-living-withparents.505083 649

 

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and obligations as parents in a civil marriage. Concerning the adoption rights, there was a lot of controversy.655 On the same day, the Parliament amended the Constitution to include protection from discrimination on grounds of sexual orientation and gender identity. The Equality between Men and Women Act was originally intended to cover gender discrimination but it has since been amended to cover discrimination on the basis of sexual orientation as well. Finally on April 14th 2015 the Gender Identity, Gender Expression and Sex Characteristics Act (GIGESC Act) was introduced. Since 2014, marriages and civil unions that have been celebrated abroad are recognised in Malta. When a couple comes to Malta, their pre-existing relationship is recognized, provided that (a) the formalities required for its validity by the law of the country where the marriage occurred or the civil union was contracted are observed, and (b) each of the persons to be married or bound in civil union is, by the law of the country of his-her respective domicile, capable of contracting marriage. Since 2012 hatred on the basis of sexual orientation can lead to hate crimes.656 At the moment of writing, IVF and surrogacy access are banned for same-sex couples. IVF is prohibited for single women and lesbian ladies under the Embryo Protection Act 2012. However, on 7th September 2015 the prime minister said that the government is determined to introduce a bill to make this possible.657 Furthermore there is a draft bill by the government to ban sexual orientation or gender identity conversion therapy.658 Malta could become the first country in the world to ban gay-cure therapy.659

2.18.3 National policy The Malta Gay Rights Movement (MGRM), founded in 2001, is a non-governmental organisation that is campaigning for a number of legislative and policy changes to be introduced. Furthermore, MGRM is advocating for an anti-homophobic and transphobic bullying policy in schools and better response by the police to hate crimes.660

                                                                                                                      655 James Debono (2013, November 18). MaltaToday survey | Majority favour ‘civil unions’ but not gay adoption http://www.maltatoday.com.mt/news/data_and_surveys/31546/majority-favour-civil-unions-but-not-gayadoption-20131117#.VkYVuk2FOUk 656 Articles 82A – 82D Chapter 9: Criminal Code 657 Matthew Fella (2015, September 7). Prime Minister ‘resolute on embryo freezing’. Malta Today. Retrieved from http://www.maltatoday.com.mt 658 Tim Diacono (2015, June 16). Gay ‘conversion therapy’ could become a criminal offence. Malta Today. http://www.maltatoday.com.mt 659 Nick Duffy (2015, December 16). Malta could become first country in Europe to ban ‘gay cure’ therapy. Pink News. http://www.pinknews.co.uk 660 MGRM – Malta Gay Rights Movement (2016, March 20). Retrieved from http://www.maltagayrights.org/ourwork.php

 

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2.18.4 Summary Same-sex couples are now better protected in Malta through a range of changes that have been made: the inclusion of the grounds in the Criminal Code in relation to hate crime and hate speech; the improvement of equality legislation through express inclusion of the ground of gender identity for the first time; and the extension of the remit of the national equality body to cover both grounds. However, they have not yet achieved equality in the area of partnership and parenting. The Embryo Protection Act expressly lesbian couples and single women from access to IVF.661 Marriage is not open to same-sex couples but Civil union (Civil Unions Act of 2014) is. Under adoption laws, same-sex couples are treated in the same way as opposite-sex couples. In general, a civil union, once registered, shall have the corresponding effects and consequences in law as marriage.

                                                                                                                      661

 

ILGA-Europe Annual Review 2013. Malta. Retrieved from http://www.refworld.org/pdfid/5195f1200.pdf

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2.19 Poland Written by Iga Mlynarczyk

2.19.1 General principles It is a representative democracy, with the Prime Minister as head of government and the President as the head of state. The Polish Republic’s political system as determined by the Polish Constitution adopted by the National Assembly on 2 April 1997. is a parliamentary republic which applies the principles of national sovereignty, independence and a democratic state of law, civil society, the separation of powers, pluralism, rule of law, social market economy and the inherent dignity of the human being. Executive power is exercised by the President and the Government. Typically, its members are chosen from a majority party or a coalition in the lower house of parliament, and approved by the majority of members of the lower house of parliament within two weeks from the appointment. The president is elected every 5 years in national, public and secret elections. The president has the power to veto legislation passed by the parliament, which however can be overridden by a majority of three fifths. Legislative power is vested in the two chambers of parliament. Members of parliament are elected every four years, by a national, public vote662, holding the particularity that a certain percentage of seats must be reserved for the non-ethnic-minority in the lower house. Judicial authorities are independent and consist of the following: the Supreme Court, the common courts (district, regional and appeal) and special courts (military courts and administrative). The State Tribunal and the Constitutional Tribunal are the special jurisdictions with special functions. Judges may not belong to any political party or trade union. Nor can they perform public activities endagering the principles of independence of courts and judges. The Constitutional Tribunal is a judicial body established to resolve disputes regarding the constitutionality of the laws passed by the parliament. Its main task is to supervise the compliance of statutory law with the constitution. It can overrule the laws passed by the parliament, which violate the freedoms guaranteed in the constitution. In accordance with the legal obligation imposed by European Union Law663 to appoint a body for the promotion, analysis and support of equal treatment, the Polish Ombudsman is an independent body whose mission is the protection and monitoring of citizens’ rights. stablished by law at the end of 1987, the first ombudsman started his term on 1 January 1988. The national 662 663

Parties must gain at least 5% of the national vote to enter the lower house European Union Directives 2000/43/EC, 2004/113/EC and 2006/54/EC

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Ombudsman is elected by the lower house of parliament for a term of five years. He is independent from the other institutional bodies, however he is responsible in front of parliament, which can revoke his mandate before the end of the term. The ombudsman controls and takes appropriate action if he finds that a deliberate act or omission by the authorities, organizations or institutions violates citizens’ rights provided for in the constitution and other normative acts, and the principles of coexistence and social justice. The Ombudsman can directly approach the Constitutional Tribunal and request its control over a particular administrative or legislative act of public authorities. He can file legal questions to the Supreme Court, and can initiate legal proceedings or adhere to judicial and administrative proceedings, where he finds it relevant for the fulfilment of his mission664. The Ombudsman reports his activities and the state of the observance of human rights, freedoms and civil rights in Poland to the parliament on a yearly basis665. He does not have legislative initiative, but may request the competent bodies to issue or amend an existing act or decision. Parallel to the Ombudsman, an institution of the Government Plenipotentiary for the Equal Treatment was created in 1996666. The tasks of the plenipotentiary are the preparation of a national program for development of civil society, monitoring the implementation of such a program, coordination and monitoring the cooperation of the government administration with NGOs and the prevention of discrimination on grounds of gender, race, ethnicity, nationality, religion, creed, belief, disability, age or sexual orientation.

2.19.2 Equal rights Human rights and fundamental freedoms are set forth in Chapter II of the Constitution of the Polish Republic and further guaranteed by numerous international conventions ratified by the parliament. Article 32 of the Constitution states that everybody is equal before the law. The prohibition of discrimination667 is followed by the principle of equality between men and women668. National and ethnic minorities are guaranteed freedom of culture, language and tradition. In 2010669, several legislative acts were amended to ensure compliance with European Union law on equal treatment. Article 256 of the Penal Code of 1997 prohibits any kind of hate crime based on national, ethnic, racial, religious or due to lack of religious beliefs. However, it does not penalize hate speech based on sexual orientation. Article 11³ of the Labour Code of 1974, prohibits discrimination in employment, among others, based on sexual orientation.                                                                                                                       http://orka.sejm.gov.pl/Druki7ka.nsf/0/59CB75C108B18623C1257E4400354A4A/%24File/3391.pdf As provided by article 212 of the Consitution. 666 Law of 3 August 1996, Dz. U. of 2003. No. 24, item 199, as amended 667 Art. 32 668 Art. 33 669 Law of 3 December 2010, Dz. U. Of 2010 r. No. 254, item 1700, as amended 664 665

 

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Only since 2005, homosexual men can be a blood donor670. Based on the law on treatment of infertility, only women in heterosexual relationships or marriage671 are allowed for the process in vitro. In Poland there are over two million LGBT (lesbian, gay, transgender and bisexual). It is estimated that about half of them live in intimate relationships672. Many LGBT completely hide their intimate relationships at work (31%), in the neighbourhood (49%) and from the extended family (44%)673. The preamble of the Constitution makes an explicit reference to God and Catholic values. The official stance of the Polish episcopate has a significant influence on national politics and on the current state of legislature. Therefore, as it stands now, the rights of homosexuals are highly limited, leaving little room for recognition of homosexual unions. There are no specific legal provisions governing the rights of same-sex couples. Polish law in general does not provide for any other form of legal union than marriage. There is no legally recognized form of partnership, and couples living in cohabitation (irrespective of the sex of the partners) enjoy very few rights, which are available to married couples. Non-formal couples not only incur higher financial costs of living and need to make each additional formal procedure, including in terms of normalization of tax issues (personal income tax, inheritance tax), but also must face difficulties with practical issues (access to medical information). Agreements concluded by notary do not solve all the practical issues faced by such couples. For years, the Polish parliament has attempeted to enact law enabling formal partnerships. However, the parliamentary discussions prove to exceed what should be a material debate. Discussions focus largely on ideological disputes about the ethical aspects of homosexuality, and to a lesser extent, moving important issues regarding partnerships and projects proposed in the rights of people who would be included. Finally, all projects ever submitted were rejected by the lower house of the Parliament. Marriage is explicitly defined in the Constitution as union of man and woman674. As a consequence, it is impossible to introduce any kind of recognition for homosexual unions by the means of law. The Family Code in Article 1 §1 states that the marriage is contracted when a man and a woman take a vow in front of the clerk at the Registry Office to get married.                                                                                                                       670 Regulation of the Minister of Health of 18 April 2005. On the conditions of collecting blood from candidates for blood donors and blood donors, Dz.U. 2005 nr 79 poz. 691 671 Art 20§1(2) Uchwalono na pos. nr 95 dnia 25-06-2015, Dz.U. poz. 1087 672 http://rodzinyzwyboru.pl/o-projekcie/ 673 http://rodzinyzwyboru.pl/wp-content/uploads/2014/09/Broszura_Rodziny-z-wyboru-w-Polsce.- ycierodzinne-osób-nieheteroseksualnych.pdf 674 Art. 18

 

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For a marriage or a civil partnership abroad – which can be performed in more than twenty countries—a Polish citizen must provide the foreign Registry Office with a certificate stating there are no legal obstacles from the Polish law’s perspective to conclude the marriage.675 According to the Family Code, a person must be unmarried, of legal age, and have full legal capacities to contract. Additionally, the model application for a certificate concerning the conclusion of the union abroad requires the entering of data of the person ones wish to enter into the union.676 A case law relates to this situation. A Polish citizen wished to marry in Spain with a person of the same sex. The Polish citizen addressed the head of the Registry Office for a required certificate in September 2010. The Head of the Registry Office refused to issue a certificate upon realizing that the future spouse was a person of the same sex . This refusal was based on the Family Code, i.e., the fact that marriage should be contracted between man and woman. In the case at hand, the spouses were indeed of the same sex. On 6 March 6 2013, the District Court on 6 confirmed the Rrgistry Office’s position. The court of second instance (appellate) dismissed the appeal. The applicant lodged a complaint to the Supreme Court, which stated the inadmissibility of such an action677 based on procedural reasons.678 In 2011, the European Commission stated that keeping such a practice violates the principle of free movement of persons and also violates the prohibition of discrimination. The Ministry of the Interior ensured that future law on civil status will settle the matter. Despite complaints to Strasbourg, Polish reprimand from the European Commission, the intervention of the Ombudsman Irena Lipowicz, the overturn unfortunately did not happen. The first case of an administrative acknowledgment of same-sex couples occurred in 2004. The governors of, Warsaw,the Polish capital, decided to recognize de-facto unions in the Board of Municipal Transport, including same-sex couples, thus giving employees and their partners the right to free use of local public transport.679

2.19.3 National policy The distance (level of prejudice) Poles have in relation to the LGBT community is significant. In relation to homosexual men, this distance is of 50.5%, to transgender people 48.9%, to bisexual 47.7% and to homosexual women 46.2%. In comparison, the distance towards people with mental illness equals 46.3%.                                                                                                                       Art. 71 Law on civil status Art 76§1 of Law on Civil Acts 677 I CSK 484/13, judgment of Supreme Court of 24 June 2014. 678 Article. 519 (1) par. 2 of the Code, which says that in matters of family law, guardianship and wardship cassation appeal shall be granted only in cases of adoption and for the division of joint property after the termination of community of property between spouses, unless the value of the disputed is less than one hundred and fifty thousand dollars. "None of those conditions here do not occur. 679 Resolution No. XLIII/1040/2004 of 16 December 2004 . 675 676

 

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In 2013, a survey conducted by CBOS underlined the “attitude to the rights of gay and lesbian and partnerships” 680 : the majority of thoses questioned (83%) considered homosexuality as a deviation from the norm, and only 12% claims it is something normal. More than half (57%) believes that homosexuality should be tolerated, while 26% that it should not be accepted. Most Poles remain reluctant to actual and potential rights to gay couples: almost two-thirds (63%) believe that they should not have the right to publicly display their way of life, while more than two thirds (68%) did not accept the legalization of gay marriage, and nearly nine out of ten (87%) did not accept the possibility of adoption. Only 33% of the respondents accept the possibility of formalizing same-sex relationships, while 60% did not agree to it. The survey conducted by the Fundamental Rights Agency regarding LGBT people in the EU shows that in Poland, 28% have experienced unequal treatment in the workplace (in the last 5 years). 89% of people have experienced negative comments or behaviour at school. 22% respondents experienced persecution over 6 times in the last 12 months.681 The socio-demographic groups vary in this respect: recognizing homosexuality as a deviation is more common among the eldest respondents, the least educated, those participating in religious services several times a week, and occasionaly among themost educated The Jagiellonian University program study showed the high degree of discrimination faced by the LGBT community, at the same time alow level of acceptance for an intensive national policy in this regard. The National Action Plan for Equal Treatment for the years 2013-2016682, was prepared in the office of the Government Plenipotentiary for Equal Treatment. The program is the first government document that moves the issue of equal treatment for discriminated groups. The document collects in one place, organizes and prioritises the key activities in order to promote and ensure equality, which are implemented by the government in various ministries and subordinated bodies. In Poland, there are LGBT organizations both nationwide and at regional level. They deal with assisting community of LGBT people in legal, administrative but also social matters. Campaign Against Homophobia (KPH) is the most famous nationwide non-governmental organization dedicated to promoting tolerance towards sexual minorities in the Polish society. It organizes action aimed at combating homophobia and the fight for the rights of LGBT people. It has the status of public benefit organizations (OPP).

                                                                                                                      Survey CBOS „Postawy wobec gejów i lesbijek”, 2010 r Survey of the EU Fundamental Rights Agency regarding LGBT people, April-June 2012. 682 Available on: http://www.spoleczenstwoobywatelskie.gov.pl/sites/default/files/krajowy_program_dzialan_na_rzecz_rownego_tr aktowania_przyjety_na_rm_10.12.13.pdf 680 681

 

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2.19.4 Summary The preamble of the Constitution makes an explicit reference to God and Catholic values. The official stance of the Polish Episcopate and of the Church have a significant influence on politics and on the current state of legislature. Therefore, as it stands now, the rights of homosexuals are highly limited and there is little room for a recognition of homosexual unions. Despite the lack of official recognition, impossibility of the legalization of their partnership, and open homophobia, “families of choice” do exist in Poland. They function on the margin between social refusal of acceptance and existence of other alternative forms of relationships, which are becoming popular in Poland.

 

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2.20 Portugal Written by Ana-Teodora Iacob683

2.20.1 General principles of jurisdiction Portugal is a southwestern country in the Iberian Peninsula, founded in the 12th century. Portugal can be considered as one of the oldest countries in Europe.684 The first Portuguese Republic was established in 1910 after a republican revolution brought about the end of kingdom. In 1926 a coup d’état in turn ended this recently established parliamentary democratic regime and set a military dictatorship. This was followed by the authoritarian government of Salazar founded in 1932, characterized by the motto ‘Proudly alone’. The authoritarian government lasted until 1974, four years after his death.685 This regime suppressed freedom and any form of democratic institution. With the peaceful Revolution of the Carnations in 1974, Portugal has become a democratic republic.686 This represents a turning point for the Portuguese society, as it ‘[...] restored fundamental rights and freedoms to the people of Portugal’.687 During this period, legislation has been adopted to ensure political democracy and the feasibility of political, economic and social reforms, actions that did take place throughout the decades. Since the ratification of the 1976 Constitution, the country knows a semi-presidential constitutional regime, however in practice the predominance of Parliament is not unnoticeable.688 Portugal is a unitary state. However, due to the dual geographical nature of the state, namely both continental and insular, the territorial organization of the state is not completely centralized. The state confers political and legislative powers to autonomous regions such as Azores and Madeira in order to facilitate the collective organization on islands. The Portuguese judicial system is formally independent from the legislative and the executive. The highest judicial authority is the Supreme Tribunal of Justice and there is also the Constitutional Court (Tribunal Constitucional), whose justices are appointed by the Parliament (Assembleia da Republica) and who rule on the constitutionality of laws. Public functions are established on democratic legitimacy; direct in the case of the Parliament and indirect in the case of the Government, the latter being accountable to the former. The most important legislative functions are confined to the Parliament, including the ability of amending the Constitution. The 19th and 20th centuries mark an inflow of constitutional ideals, due to the influence of the liberal revolutions. The current Constitution of Portugal, ratified in 1976, marks the end of more 683

Ana-­‐Teodora  Iacob  is  a  postgraduate  student  (LLM  European  Private  Law)  at  the  University  of  Amsterdam   encyclopedia of nations,''(Portugal) http://www.encyclopedia.com/topic/Portugal.aspx>, accessed 15 June 2015 685Jay Heale and Angeline Koh, Cultures of the World- Portugal (2nd edn, Marshall Cavendish Benchmark 2006) 30 686 Ibid. 687Preamble of the Constitution of the Portuguese Republic, 7th Revision [2005], http://app.parlamento.pt/site_antigo/ingles/cons_leg/Constitution_VII_revisao_definitive.pdf, accessed 15 June 2015 688(Assembleia da República,) <http://www.en.parlamento.pt/index.html> accessed 15 June 2015 684Worldmark

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than thirty years of dictatorship; its final amendment took place in 2005. The fundamental rights and freedoms are encompassed in the act, starting with general principles (Art. 12 et seq.) and followed by two special parts (Art. 24 et sq. and Art. 57 et sq.) marking different ways of treatment of the fundamental rights. The rights and freedoms encompassed in the Constitution are binding and directly applicable. The catalogue of human rights in the constitution is not closed. Article 16 specifically mentions that the rights established by the text of the Constitution should not oust other rights as laid down by international law. The Constitution includes rules regarding marriage and formation of a family, which does not discriminate between same-sex couples. In 2004, Article 13 of the Constitution was modified to include a prohibition on discrimination based on sexual orientation. There is no express mention as to the sex of the spouses, thus not preventing legislation to equally recognize marriage between all individuals, in accordance with their sexual orientation.

2.20.2 Equal rights 2.20.2.1 Individual protection of human rights Portugal is one of the countries that have departed from the traditional concept of marriage. However, there was no consensus on this subject, but it happened due to a victory of the leftwing parties that happened to be in power when the measures were brought about.689 Article 13 of the Portuguese Constitution establishes the requirement of non-discrimination on basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation and that the citizens of Portugal have equal rights and obligations in front of the law.690 Portugal has, nonetheless, registered reports of race, gender or sexual discrimination.691 New legislation in the field of immigration increasing the requirements for admission have the effect of overcrowding the Reception Centre for Refugees.692 Race discrimination and discrimination against immigrants can take various forms, this being overt and direct (unequal pay in the form of wage and earning caps) or discrete and subtle on basis of diploma requirements or on basis of the illegal status of the individual. Furthermore, there have been cases of aggravated discrimination- unequal treatment based on race, colour and gender or racist police violence.693

K. Boele- Woelki and A. Fuchs, ‘Legal Recognition of Same-Sex Relationships in Europe- National, Cross-Border and European Perspectives’, 2012, 2nd ed. p.41 690Article 13 of the Constitution of the Portuguese Republic (Seventh Edition) [2005] 691Amnesty International Report 2014/15 The State Of The World’s Human Rights, p. 298, available at <http://www.amnestyusa.org/pdfs/AIR15_English.PDF> 692Ibid., p 299 693Ana Rita, 'Racist Police Violence in Portugal', (Islamic Human Rights Commission) <http://www.ihrc.org.uk/publications/briefings/11358-racist-police-violence-in-portugal--8february-2015> accessed 25 June 2015 689

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Despite its liberal views and friendly attitude and legislation regarding gay marriage, Portugal is still on the list with cases of discrimination based on sexual orientation. Surveys have shown that a high number of the respondents still perceive sexual orientation discrimination as widespread.694 Another recent survey established that in countries such as Portugal (29%) it is more likely to encounter respondents who have felt discriminated against in school or university because of being LGBT than in countries such as the Netherlands (8%) or Denmark (10%).695 The 2007 Eurobarometer established that 67% of the citizens in Portugal believe that discrimination based on sexual orientation is widespread. Furthermore, in 2009 Portugal scored under the European average with regard to the general perception toward LGBT people, situation which was deemed to be in continuous improvement, as it could be seen just a year later when gay marriage was approved. A report released by the United Nations shows that since 2011 the situations present positive developments in the form of measures adopted by several states including Portugal to combat the issues of homophobic violence.696 Among these measures, there are included measures of enactment or strengthening the anti-hate laws or antibullying and other forms of discrimination in schools to name a few.697

2.20.2.2 Recognition of relationships/family protection The concept of family is not defined in the Constitution of Portugal. Article 36 establishes the conditions under which a family can be formed. There is no mention of the gender of the spouses. It provides for equal rights for men and women in the upbringing of their children.698 Article 67 further mentions the obligation of the state and society to provide support and privacy to families in order to enable them to achieve personal fulfillment. In Portugal, the minimum age to marry is 16, the same for both men and women. Furthermore, in 2010, when same sex marriage was legalized through Law n. º 9/2010, the same threshold was applicable.699 According to a survey conducted in 2014, the average marriage age in Portugal is 32.1 for men and 30.6 years for women.700

                                                                                                                      694 Special Eurobarometer 393 , ‘Discrimination in the EU in 2012’ available at <http://ec.europa.eu/justice/discrimination/files/eurobarometer393summary_en.pdf> 695EU LGBT survey European Union lesbian, gay, bisexual and transgender survey, European Union Agency for Fundamental Rights, available at < http://fra.europa.eu/sites/default/files/fra-eu-lgbt-survey-mainresults_tk3113640enc_1.pdf>, accessed 25 June 2015 696'Discrimination and violence against individuals based on their sexual orientation and gender identity', Report of the Office of the United Nations High Commissioner for Human Rights, 4 May 2015, available at http://ilgaportugal.pt/noticias/Noticias/A_HRC_29_23_en.pdf 697Ibid., p. 22 698 Article 36 of the Portuguese Constitution 699Lei Nº9/2010 de 31 de Maio – allows marriage between people of same sex. 700‘ Mean age on first marriage by sex in Portugal’, Portada, available at ’http://www.pordata.pt/en/Portugal/Mean+age+on+first+marriage+by+sex-421

 

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2.20.2.3 Recognition of homosexual relationships The year of 2001 was an important year for the LGBT community in Portugal, as it marked the first step towards more rights for the LGBT community since the decriminalization of homosexuality in 1982. By passing in March 2011 a bill which recognizes de facto unions for both opposite and same sex couples, Portugal joined other European countries which recognized homosexual partnerships.701 Unmarried cohabitation was not unknown in Portugal, this union being recognized both in the Civil Code and in case law. However, before the adoption of Act 7/2001 of 11th May, this recognition of this type of partnership did not extend to same sex couples, with the sole exception of the Housing Law. Accordingly, both heterosexual and homosexual couples had the same rights in the case of the death of tenant- the other partner had a right of preference to keep the lease.702 Even as early as 1997, there were attempts at aligning the rights of opposite and gay couples. The Socialist Party proposed a partnership bill to include both same and opposite partnerships, but the bill was rejected. It took four more years for this to become law (2001). Two years later, the same party published a revised partnership bill, this type covering only heterosexual couples under its scope. This time the bill passed; the text of the bill granted their subjects who lived in a de facto union for more than two years marital rights on certain areas. Portugal has reached this development in relatively a short period of time, considering the fact that in 1999 one could still find prejudices and discrimination in various forms. Such as the exclusion of male homosexuals from the voluntary blood donor list or the classification of homosexuality as a disability by the Superior Council of Statistics.703 The recognition of the de facto unions for homosexual couples was a big breakthrough and it constituted the first of many to come. This achievement was followed by changes in the Labour Code, inclusion in the Constitution the prohibition of discrimination based on sexual orientation and increasing the penalties for same sex domestic violence and hate crimes. Portugal approved and recognized civil marriage for gay people in February 2010 and the bill introducing the law was declared constitutional shortly after. Also in 2011 Portugal saw adoption of gender identity provisions. The law granting homosexual couples the right to marry was passed while the power was in the hands of the socialist party, with the legislative support of other leftist parties.704                                                                                                                       701‘

Situation of Portugal with respect to the application of the Revised Social Charter’, available at <http://www.coe.int/t/dghl/monitoring/socialcharter/CountryFactsheets/Portugal_en.pdf>; ‘Act No. 135/99 introduced a series of protective measures for heterosexual couples having co-habited for two years or more. In 2001, these measures were extended to homosexual couples’. 702Rosa Martins, 'Same-sex partnerships in Portugal From de facto to de jure?' [2008] Volume 4(2) Utrecht Law Review 194-211, available at <http://www.estig.ipbeja.pt/~ac_direito/RMartins.pdf>, accessed 28 June 2015 703 Nuno S. Cameiro and Isabel Menezes, 'From an Oppressed Citizenship to Affirmative Identities' [2007] Vol 53(3) Journal of Homosexuality 65-82, available at <http://www.tandfonline.com.proxyub.rug.nl/doi/pdf/10.1300/J082v53n03_05>, accessed 28 June 2015 704David Pettinicchio, 'Current Explanations for the Variation in Same-Sex Marriage Policies in Western Countries' [2012] 11 Comparative Sociology 538, available at <http://www.davidpettinicchio.com/uploads/1/5/4/8/15484818/current_explanations_for_ssm_published_p

 

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Adoption as an institution had an interesting development in Portugal. It was abolished by the Codigo of Seabra in 1867 and it was only reintroduced in 1966. Decreto-lei no. 496/ 77 introduced lower age requirements for adoption and the possibility of adoption for single parents. Further progress was made in the years to come by adopting the possibility of temporary residence with the adopter and a step before full adoption and shorter adoption processes. Up until recently, Portuguese Law denied adopting rights to gay individuals whether single or in a relationship. However, on the 29th of February 2016 a bill was finally approved that grants gay couples joint adoption rights.705 The adoption of Act 7/2001 of May 11 brought changes regarding the recognition and rights of gay couples and individuals. These rights were nonetheless limited and the act was nowhere near the standards established by the northern European act regarding registered partnerships. Article 7 of the act of 2001 did expand the right to adoption of unmarried cohabiting couples, however this rights was not afforded to gay couples as well. In May 2013, the Parliament of Portugal approved on general terms a bill granting limited parenting rights to the individuals involved in a gay relationship: adoption by one of the partners of the biological child of the other partner was now accepted, irrespective whether the couple was married or in a de facto union. This measure was in the end for the benefit of the child, which would be granted more protection in case of death of serious injury. The Social Democratic Party (Partido Social Democrata) elaborated a proposal to organize a referendum on the issue, which was found to be unconstitutional by the Constitutional Court, on grounds of misleading questions. Left wing parties (Socialist Party), while still supportive of gay parenting rights, were of the opinion that is was the Parliament who was supposed to adopt this kind of laws. The proposal on co-adoption bill forwarded by the Socialist Party in 2014 was rejected and it is considered to have failed as a consequence of the fact that the Constitutional Court declared the referendum to be unconstitutional. November 20th of 2015 has seen the adoption of a law which give same-sex couples equal adoption rights in Portugal. Lesbian couples are also allowed to receive medical assisted fertilization. Again, this has been possible to due the Left-Wing Parties which took adverting of their parliamentary majority and ensured that the bill would pass.706                                                                                                                                                                                                                                                                                                                                                                                 roofs.pdf, pg > TPN/ LUSA (2016, February 22). President signs same sex adoption into effect. The Portugal News Online. http://www.theportugalnews.com 706 J.P/ McCormick, ‘Portugal just equalized its adoption laws for gay couples’, 2015, available at http://www.pinknews.co.uk/2015/11/20/portugal-just-equalised-its-adoption-laws-for-gay-couples/ 705

 

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2.20.3 National Policy Portugal is under the predominant influence of Catholicism, meaning that changes in legal, social or cultural fields take time to happen. However, the LGBT activism in the last decade has accelerated the process of improving gay and lesbian rights in the country. In the beginning of the 1990's events such as the Pride Party or the Gay and Lesbian Film Festival were the first acknowledgments of the movement. The Homosexual Working Group of the Socialist Revolutionary Party brought considerable social and political influence before the emergence of NGO's. It represents the only politicized organization which deals with LGBT rights in Portugal, working complementarily with LGBT NGO's. In 1996, ILGA Portugal has been created, with the support of the municipality of Lisbon.707 The Portuguese gay movement has long history in their efforts and attempts to influence the (political) measures towards the improvement and recognition of gay rights, but these were not always successful. Such an example is the attempt of ILGA to influence the political parties to amend Article 13 of the Constitution regarding equal rights to include sexual orientation as a protected minority, which only as late as 2004 reached its aim and an amendment to the Constitution was made to include that there shall be no discrimination on sexual orientation, making Portugal one of the first countries in the world to have this right protected constitutionally.708 In 1999, when the Act No. 135/99 partnership bill was adopted it only concerned heterosexual couples living in a de facto union for a period of more than two years. Following pressure from the gay and lesbian associations and organizations, the Social Party declared intention to extend the scope of the bill to cover homosexual couples as well. The consequence is that the partnership act of 2001 replaced Act No. 135/99. From this moment onwards de facto unions are recognized for everyone irrespective of the gender of the individuals involved. The formation and activity LGBT movement and the efforts of the gay associations would not have been possible before the instauration of a democratic regime in 1974. Even so, a democratic regime represents only the ground on which freedom of expression and equal rights can develop, the regime per se did not and does not in general guarantee equal rights irrespective of the sexual orientation- in Portugal and in other Southern European Countries LGBT rights have development and the LGBT movement has been most prolific under the emancipatory governance of leftist party ideologies.709                                                                                                                       707Associação

ILGA Portugal - Intervenção Lésbica, Gay, Bissexual e Transgénero , <http://ilgaportugal.pt/ilga/index.php> 708Portuguese Constitution, 2005 709 AF Cascais, 'Different as Only We Can Be Portuguese LGBT Associations in Three Movements ' [2009] 0(0) RCCS Annual Review, available at http://rccsar.revues.org/131#entries

 

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It is interesting to notice that a country such as Portugal which had the longest authoritarian regime in Western Europe and which had close ties with Catholicism, currently has one of the most gay-friendly legislation in the world. According to the experts' opinion, it is not just a happy coincidence, but exactly the total oppression of the totalitarian regime and the antipathy of the church towards the LGBT community are the factors which led to the adoption of the present legislation which makes Portugal one of the most gay friendly countries: 'wherever you have the biggest oppression you have the biggest resistance'. Furthermore, change was also driven by general feeling of guilt, a feeling of reparation and the necessity of making up for the past.710 With regard to the influence of the Catholic Church and the apparent obstacle that it may have imposed toward the equalization of rights, Sabbadini added that no matter the preaching that bishops and cardinals can make, the church is still associated with and viewed through the role it played during the dictatorship. Furthermore, in countries where the institution of marriage decreased in importance and does not have the status it used to have, there is a bigger chance for a more favourable environment for gay marriage legalization.711 On the other hand, there are studies who emphasize the importance of the NGO's who appealed to equality of rights rationale and presented their causes from a human rights perspective, as opposed to associating gay rights improvement to a general aversion towards a decrease of popularity of the church.712 One thing can be ascertained: the path followed by the development of gay rights in Portugal was possible due to a couple of factors: the majority of the democratic socialist government in 1987 and acceding to the European Union in 1986.713 The influence of the European Union and of the European Court of Human Rights provided the necessary impulse for further development. For example, even though Article 14 of the ECHR does not expressly mention the prohibition of discrimination based on sexual orientation grounds, the Court established that the provision does cover the situation.714 Even as early as 1999 the notion of equality between homosexual and heterosexual individuals was included and formed an essential part of treaties and conventions.715 Directives constitute yet another tool for aligning rights in the European Community and gay rights were no exception. The influence of European legislation on the matter is noticeable and this fact can be better seen by the attitudes of citizens of different countries towards the LGBT community: the citizens of states who just recently joined the Union seem to be more likely to have homophobic tendencies.716                                                                                                                       710Paulo

Corte Real, from Familias Arco Iris, <http://familias.ilga-portugal.pt/> 17, 529 712Noah Jennings, 'Same-Sex Marriage on the Iberian Peninsula: The Church and Franco ’s Competing Legacies' [2011] 2011(Article 6) Claremont-UC Undergraduate Research Conference on the European Union, p. 35-52 713 Ibid. 20 714 Salgueiro da Silva Mouta v. Portugal, Appl. No. 33290/96, 21 December 1999, § 28 715Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 1997 O.J. C 340/1 716J Gerhards, 'Non-Discrimination towards Homosexuality- The European Union’s Policy and Citizens’ Attitudes towards Homosexuality in 27 European Countries' [2010] Vol 25 (1) International Sociology, 5-2 711Ibid

 

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2.20.4 Summary Against all odds, Portugal proves to be one of the most accepting countries towards the LGBT community. A country with a long totalitarian regime and under the influence of the Catholic Church- which is no secret that these two institutions have not been very empathic with the homosexual community- currently has one of the most progressive legislation in the European Union. Gay marriage and the rights pertaining to this institution are legal since 2010. Although this has been a victory and an important step forward, there is still a long way to go. Adoption rights are not equal for both opposite and same sex couples. While homosexual couples may adopt the biological child of their partner, joint adoption is not possible. An important role in the development of Portugal's current stand with regard to the LGBT community was played by the activity of the NGO's in the field and by the European Union. Even though Portugal followed a steady, step by step development- first decriminalization, followed by legalization of de facto unions and only towards the end allowing gay marriage- this happened in a relatively short period of time considering the influence of the past regimes a religious presence. It seems that Portugal, as well as other countries in the European Union, is in a state of inertia when it comes to adopting legislation which aligns rights of the LGBT community. When one sees it from the perspective of the equality of human rights, there is only one possible outcome.

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2.21 Romania Written by Ana-Teodora Iacob717

2.21.1 General principles of jurisdiction Romania is situated in in the central-eastern part of Europe. The country has a semipresidential republic system with a unitary government and is member of the European Union since 2007. Throughout history, Romania has developed to the form of today under the influence of various systems of governance. Interestingly, from being a monarchical state, it became a communist republic within one century. However, in the end it returned to democratic values after the fall of the USSR in 1989 and later on, under the auspices of the EU. Romania gained its independence in 1877. The legal system is based on the civil law tradition. The Constitution was adopted in 1991 and was most recently amended in 2003. Romania is a republic. The executive power is vested in the President, who is directly elected by the people for a maximum of two consecutive terms. The Prime Minister (head of the Government), is appointed by the President. The legislative power is vested in the Parliament, which consists of the Senate and the Chamber of Deputies. The High Court of Cassation has the supreme judicial power and has the role of unifying jurisprudence. One of the tasks of the Constitutional Court is to guard the supremacy of the Constitution.

2.21.2 Equal rights 2.21.2.1 Individual protection of human rights The Penal Code of 1864 did not prohibit homosexuality. It was inspired by the French approach to homosexuality at the time, which in 1791 prohibited any special punishments for different sexual orientation. The first time anti-homosexual legislation that arose was the adoption of the 1936 Penal Code under the government of King Carol II, which incriminated ‘sexual inversion’, in line with other states’ legislation. The acts of homosexuality were punishable, if they triggered ‘public scandals’. With the instauration of the communist regime, the oppression, restrictions, repression and intolerance reached its peak. It has been argued that Romanian legislation on homosexuality throughout history mostly followed external tendencies. Even though, the population itself could not necessarily be described as homophobic. Therefore it could be possible, since the legislation does not necessarily show ‘Romanian traditions’ to make a step forward by looking up to more open societies. Whereas history proves parts of the statement to be true, discrimination does not only happen at a political level, but there is also a social dimension to it. The social dimension is only 717

Ana-­‐Teodora  Iacob  is  a  postgraduate  student  (LLM  European  Private  Law)  at  the  University  of  Amsterdam.  

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triggered by the mentality of the population, influenced by the background of each individual, by the church or by other factors. The notion of homosexuality was only expressly acknowledged in Romania in 1968, but with the purpose to outlaw it completely. After all it was in line with Ceausescu’s draconic pro-natalist ideals and in general, in accordance with a regime preoccupied with supervising and regulating every movement and behaviour, whether public or private. Article 200 of the Penal Code read: ‘Sexual relations between persons of the same sex are punishable by imprisonment of one to five years’. Homosexuality was thus a criminal offence and every person risked imprisonment for every type of behaviour that indicated other sexual orientation, whether publicly or privately. There was a clear intention to not let this minority flourish and they were driven in an underground environment as one would never know who could report them. Even after the change of government in 1989, homosexuality remained a criminal offense, however it started to receive more international attention, to which the response was that the law was dead and no longer enforced. For example, records of individuals suspected of being homosexual were destroyed. On the other hand, it was still admitted that a lot of people were still imprisoned for infringing the ban on homosexuality.

2.21.2.2 Recognition of relationships/family protection According to European studies, Romania is among the most homophobic countries in the European Union. Since they are having the most negative tendencies towards the LGBT community, contrary to the values which Romania assumed when joining the European Union in 2007. The current legislation regarding marriage, family and private life starts with article 26 of the Constitution which lays general rules: private and family life is to be protected and individual freedom ends only when another one’s starts. Further, article 48 establishes what constitutes a family: the creation thereof, based on the freely consented association of two individuals and the equality of spouses in the marriage. Further rules regarding conclusion, recognition and dissolution are provided by statutory law. Romania is however a country that is still heavily influenced by religion. The principle according to which religion and politics are to be separated is not granted and the politicians use the religion card selectively. In many Eastern European countries, amongst which Romania, traditional values are often brought to discussion.? Christian values may lean towards discrimination when used as a means to differentiate between the good and the bad. The rights claimed by the LGBT community are in this sense an affront to the traditional Christian family values.

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2.21.2.3 Recognition of homosexual relationships Marriage in Romania was long considered a religious institution, but it was offered civil effect in 1864. Even after the introduction of the civil matrimony, the state could still not afford to have offices in all parts of the country and therefore the church was still responsible for issuing official certificates. It can be said that the traditional church has had a huge influence in family life. The religious institution was however heavily discouraged after the communist regime has been instituted in 1948, and the only recognized form of marriage was the civil one; religious recognition was possible but no longer compulsory. Despite active attempts to discourage religious matrimony ceremonies, the majority of population was still the adept of old practices and traditions. Even though formally speaking the situation of today is different, the mentality is to a certain extent still perceivable. In practice, civil marriage is still considered as just a formality before the religious matrimony. In other words, matrimony is not perceived as completed unless the religious blessing has been given. The Civil Code establishes the conditions for a marriage to be lawfully concluded. The rules explicitly mention that marriage is between a man and a woman who have freely given their consent to the association (article 258, 259, 271). Spouses must be at least 18 of age at the time of conclusion, with some exceptions, where subject to medical or tutorial approval an individual can be married with 16. Article 277 prohibits marriage or any other form of civil partnerships between Romanian citizens of same sex. Furthermore, any civil partnership or marriage which is recognized and was concluded abroad between same-sex individuals is not legally recognized in the country. The provisions present in the Civil Code do not provide for the possibility of gay marriage. Furthermore, it is interesting to notice that in the Constitution there was previously no mention as to the sex of the spouses; this could have been a clear indication that there was a relatively easy road for a change in legislation, as long as there was will or external pressure, by following the examples of western countries or non-discrimination requirements stemming from the European level. The revision of the Constitution in 2003 defines marriage as the association between a man and a woman, ousting clearly same-sex marriages from the legal realm, being described as a step back. The amendment to the Constitution, which replaced the previous article which only mentioned the term ‘spouses’, was backed by the still powerful Romanian Orthodox Church.

2.21.3 National policy Recently there was an attempt to introduce a law on a civil union between same and opposite sex couples equally. The initiative has encountered nonetheless adverse reactions from the political realm and various NGOs. Some of them were more incisive, with an unfortunate choice of words and others were more temperate, invoking that the time was not prone for such a change  

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when Romania was confronted with other issues. Last, but not least, church representatives did also give a reaction, stating that he who makes such initiatives has ‘a confused mind’. More concretely, in 2009, the Family code provision regarding marriage was considered to be too vague; therefore a change was made from the term ‘spouses’ to specifically mentioning that the union is valid between a man and a woman. The European Network of Legal Experts in the Non-discrimination Field regarded prohibition of marriage between same-sex couples and denial of recognition of validly concluded marriages abroad contained in article 277 of the Civil Code as being of discriminatory nature. Furthermore, article 258 which defines marriage as the union between a man and a woman and the prohibition for same-sex couples to adopt children is also considered to be discriminatory. The EU has made efforts to eliminate sexual discrimination by way of Directives; however the harmonization is still not accomplished, as the outcome of the application of the Directives in the member states of the EU was very different. However, there have been set positive steps towards a friendlier approach towards the LGBT community, when in the year 2000 homosexuality has been fully decriminalized. The timing is interesting to take into account, namely ten years after the fall of communism, but long before Romania joined the EU. Among the actions taken at the time were non-discrimination rules and prohibition of antihomosexuality hate crimes. Furthermore, institutional measures were also adopted, such as establishing the National Council for Combating Discrimination, which has the ability of imposing fines whenever individuals or legal persons are being discriminated. The popular opinion is also not far from the legislative stance. Surveys has shown that only a small percentage of the Romanian population was in favor of same-sex marriage or would even be comfortable with having a gay neighbor. A society with an archaic mentality is not going to welcome the western ideas and ideals too easily. Directives, incentives, legislation and examples can be given, enforced and implemented, however the problem lies way deeper and in order. In this regard, an important role has been played by the Orthodox Church. Romanian national legislation, which, although unfortunate, would normally affect only Romanian citizens, is in practice also affecting other European citizens by not recognizing samesex unions legally valid in other Member States such as Spain, Netherlands or Belgium. Until performance itself will be accepted, it is important to establish a system of recognition which does not undermine other member states’ legislation on the issue. In 2001 ACCEPT concluded a report regarding the acts of harassment, violence and discrimination against the LGBT community. In a country where even the study on discrimination itself is encountering obstacles in the form of discrimination, it does not come as a surprise that the history of Romania is covered by oppressive acts towards people of different sexual orientation. The fact that article 200 of the Penal Code has be abolished did not trigger a change of social and political mentality, expressed through actions and statements of various  

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political representatives, which help perpetuating the state of exclusion of the gay community. ACCEPT has published worrying statistics where a great number of individuals have been discriminated against, have experience acts of aggression or have been harassed by both members of their social environment of even their own families. Furthermore, given the weak legislative protection, even in the aftermath of the fall of communism, primarily exemplified through the abrogation of the prohibition of homosexuality, it is not surprising that the individuals actually reporting theses infringements are considerably lower. All the most troublesome is that a great number of the authors of the acts of aggression are policemen, which punish arbitrarily, on the suspicion of an individual being gay.

2.21.4 Summary Romania is among the most homophobic countries in Europe. It does not recognize any type of same-sex partnership and article 277 of the Civil Code prohibits gay marriage. Furthermore, two people of same sex cannot adopt together, as held by article 462.3 CC. Proposals were introduced in 2008 and 2011 with the aim to regulate same-sex partnerships, but the work has been halted due to political reasons. The social attitude in Romania has and is not generally too affirmative towards same-sex relations and this can be traced to the socialist inheritance of Romania, which is typical for all other former socialist countries in Eastern Europe.

 

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2.22 Slovakia Written by Iga Mlynarczyk

2.22.1 General principles of jurisdiction The Slovak Republic is situated in Central Europe, bordering the Czech Republic, Austria, Poland, Hungary and Ukraine. Of the estimated population of over 5.4 million718, more than 80% represent the Slovak ethnic group. Modern Slovakia established its independence on 1 January 1993, following the peaceful dissolution of Czechoslovakia. As of 1 May 2014, Slovakia is a member of the European Union and NATO. Slovakia is a multiparty parliamentary democracy, currently led by the President Andrej Kiska and the Prime Minister Robert Fico, the head of government. The main safeguards of the Slovak democracy are embedded in its Constitution which is the main legislative act of the country. As provided in Article 2(2) of the Constitution: “State bodies may act only on the basis of the Constitution, within its limits, and to the extent and in a manner which shall be laid down by law”719. The Constitution of the Slovak Republic was enacted by the Slovak National Council on 1 September 1992, signed on 3 September 1992, and is generally effective as of 1 October 1992, with some parts as of 1 January 1993. The Constitution Day is celebrated yearly on 1 September. The Constitution of the Slovak Republic consists of nine parts. Fundamental rights and freedoms are established in the second part of the Constitution. As provided in Article 12(1) of the Constitution: “People are free and equal in dignity and in rights. Basic rights and freedoms are inviolable, inalienable, imprescriptible, and indefeasible. 720” Protection of fundamental aspects of the Slovak democracy as laid down in the Constitution, in particular, the authority to decide on compatibility of laws, decrees and legal regulations with the Constitution, lies with the Constitutional Court of the Slovak Republic. In general, the judiciary system in Slovakia comprises the ordinary law courts and the Constitutional Court. The ordinary court system includes district courts, regional courts, the Special Criminal Court and the Supreme Court. The Constitutional Court of the Slovak Republic is a special court established by the Constitution. The Constitutional Court, having its seat in Košice, is currently led by Ivetta Macejková who has been holding this post since 2007. The http://data.worldbank.org/country/slovak-republic, the 2014 estimate, (last visited 05-04-2016). The text of the Constitution may be found at: http://www.vop.gov.sk/constitution-of-the-slovak-republic (last visited 05-04-2016). 720 The text of the Constitution may be found at: http://www.vop.gov.sk/constitution-of-the-slovak-republic (last visited 05-04-2016). Article 12(20 of the Constitution provides that: „Basic rights and freedoms on the territory of the Slovak Republic are guaranteed to everyone regardless of sex, race, color of skin, language, faith and religion, political, or other thoughts, national or social origin, affiliation to a nation, or ethnic group, property, descent, or any other status. No one may be harmed, preferred, or discriminated against on these grounds.” 718 719

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Constitutional Court is composed of 13 judges appointed for 12 years (further to the amendments to the Constitution that took place in 2001). The appointment is effected by the President, out of 26 candidates put forward by the National Council. However, in case of a human rights violation, an individual does not have direct access to the Constitutional Court, but he/she may refer to the Public Defender of Rights of the Slovak Republic (ombudsman) or the non-governmental organizations. The Public Defender of Rights was established on 4 December 2001, by the Act on Public Defender of Rights.721 According to Article 151a of the Consitutution, The Public Defender of Rights is an independent body which in the scope and in manner laid down by a law protects the fundamental rights and freedoms of natural persons and legal entities in the proceedings, before public administration bodies and other public bodies, if activities, decision making or inactivity of the bodies are inconsistent with legal order. In cases laid down by a law the public defender of rights can participate in calling the persons acting in public bodies to responsibility, if the persons have violated fundamental right or freedom of natural persons and legal entities. All public power bodies shall provide the public defender of rights with needed coaction. The Public Defender of Rights of the Slovak Republic is an appointed office currently held by JUDr. Jana Dubovcová, who is in this post since March 2012. The Public Defender of Rights is elected for a term of 5 years by the National Council from the candidates proposed by at least 15 members of the National Council. The Public Defender of Rights has its seat in Bratislava, and its competence applies to state administration bodies, local self-governmental bodies, as well as legal entities and natural persons, who are taking decisions on or otherwise intervene into the rights and duties of natural persons and legal persons in the area of public administration722. The Public Defender of Rights can apply to the Constitutional Court of the Slovak Republic for commencement of proceedings according to Art. 125, if a fundamental right or freedom acknowledged for natural person or legal entity is violated by a generally binding legal regulation. In addition, the Slovak National Centre for Human Rights was established by the Act of the National Council with effect from 1 January 1994. The Centre is an independent legal entity which is not registered in the Company Register, and is thus a non-profit organization. The Centre is led by the Executive Director Marián Mesároš, who was elected by the members of the Administrative Board of the Centre, and has had this mandate since 7 December 2013. In its role, the Centre monitors and evaluates the observance of human rights, gathers, and upon request,provides information on racism, xenophobia and anti-Semitism in the Slovak Republic,                                                                                                                       564/2001 Coll. of Laws Article 3 of the Act of December 4, 2001 ”On Public Defender of Rights”; available at: http://www.vop.gov.sk/act-on-the-public-defender-of-rights (last visited 05-04-2016). 721 722

 

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conducting research and surveys to provide data in the area of human rights. It also gathers and distributes information in this area, provides library services, and provides services in the area of human rights723. As such, and as a matter of principle, Slovakia has established sufficient legislative and institutional framework to ensure the protection and promotion of the human rights, also through its membership in the United Nations and the Council of Europe.

2.22.2 Equal rights According to Article 12(2) of the Constitution, “Basic rights and liberties on the territory of the Slovak Republic are guaranteed to everyone regardless of sex, race, color of skin, language, creed and religion, political or other beliefs, national or social origin, affiliation to a nation or ethnic group, property, descent, or another status. No one must be harmed, preferred, or discriminated against on these grounds”. The Anti-Discrimination Act was adopted in 2004, in requirement with European Union law. The Act, broadened in 2008, penalizes discrimination on the basis of sexual orientation in employment, education, housing, social care and the provision of goods and services. Both male and female same-sex sexual activity is legal in Slovakia since 1962724, but only in May 201 was the Criminal Code amended to include sexual orientation as a ground for hate crimes, thus allowing penalty enhancements where a crime is motivated by homophobia. Transgender725 Slovaks are able to legally change their name and gender on their birth certificates.726 The available reports on the situation of homosexual people prove that the Slovak society is neither favourable, nor even tolerant towards different sexual orientation. More than 46 percent of gays hide their orientation from their families, and at least half of them do not reveal it to colleagues and neighbours.727 Based on Eurobarometer performed in 2006728, only 19% of Slovaks agree with the statement that same-sex marriage should be allowed in European Union, and only 12% agrees that homosexuals should be allowed to adopt children.729 A Pew Global Attitudes Project survey depicted that 66% of Slovaks believe that homosexuality should be accepted by society730. However, a European Union poll showed that only 19% of Slovaks support same-sex marriage. A more recent survey shows that more than 47% of Slovaks would http://www.snslp.sk/?locale=en#menu=1 (last visited 05-04-2016). Lucas Paoli Itaborahy & Jingshu Zhu, STATE-SPONSORED HOMOPHOBIA. A world survey of laws: Criminalisation, protection and recognition of same-sex love, ilga, 8th ed., May 2013, Page 21 725 A medical diagnosis of a psychiatric condition is required by the law. 726 http://www.washingtonblade.com/2015/10/15/eu-report-urges-slovakia-to-further-protect-lgbt-rights/ 727 http://spectator.sme.sk/c/20025839/what-is-slovakias-stand-on-homosexuality.html 728 Available on: http://ec.europa.eu/public_opinion/archives/eb/eb66/eb66_highlights_en.pdf 729 EUROBAROMETER 66, PUBLIC OPINION IN THE EUROPEAN UNION, European Commission, 2006 P 41-42 730 http://www.pewglobal.org/2007/10/04/chapter-3-views-of-religion-and-morality/ 723 724

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vote in favor of registered partnerships, but only in if it didn't provide same-sex couples with adoption rights. The majority (70%) of non-national respondents say that Slovakia is a worse country to live in for LGBT people than their country of citizenship.731 Katrin Hugendubel, the advocacy director of ILGA said that "Slovakia has a very poor track record on LGBTI equality and currently is on 22nd place among 28 EU countries on our Rainbow Europe map."732 Lesbian, gay bisexual, and transgender persons in Slovakia face legal challenges not experienced by non-LGBT residents, in particular the households of same-sex couples are not eligible for the same legal protections available to opposite-sex couples. There is no legal recognition of samesex unions in Slovakia. According to the Slovak law, marriage is an interpersonal relationship of a man and a woman concluded by a civil wedding ceremony at a Registry Office or a religious wedding ceremony in a church, in the presence of two wedding witnesses. The legal definition of marriage is enshrined in Article 41 of the Constitution, which in it’s first paragraph states that “Marriage, parenthood, and the family are under the protection of the law. The special protection of children and minors is guaranteed.” On 4 June 2014733, the Slovak parliament approved a constitutional amendment that legally excluded possibility to conclude same-sex marriage, as it introduced a legal definition of a marriage, being a “unique bond between a man and a woman”734. This proposal was submitted to the Parliament by the opposition Christian Democratic Movement (KDH) in January 2014735 who feared that the government wanted legal recognition of homosexual partnerships followed by adoption rights. "We're not against human rights protection and promotion," AZR vice chair Anna Veresova told the news media in the fall. "But we know that the pressure from lobbyists won't stop with registered partnerships but will always continue on to marriage, children's adoption by same-sex couples and penalties for speaking one's mind."736 It is said that the ruling party SMER (Social-Democrats) agreed to the demand of opposition party KDH in exchange of their support for a judicial reform.737 Out of 128 National Council Members present, 102 voted in favor of the measure, 18 voted against, 3 abstained, and 5 did not vote.738

                                                                                                                      731 European Union lesbian, gay, bisexual and transgender survey. Main results. European Union Agency for Fundamental Rights, Luxembourg 2014, page 95. 732 http://rainbow-europe.org/country-ranking#eu 733 http://www.jurist.org/paperchase/2014/06/slovakia-amends-constitution-to-define-marriage-as-between-oneman-and-one-woman.php 734 Julie Deisher, Slovakia Amends Constitution to Define Marriage as Between One Man and One Woman, PAPER CHASE (June 5, 2014).) 735 http://www.ilga-europe.org/resources/news/latest-news/slovakia-must-reject-homophobic-proposal-redefinemarriage-constitution 736 https://www.lifesitenews.com/news/slovak-government-drops-gay-agenda-in-hopes-of-getting-re-elected 737 http://www.lgbt-ep.eu/press-releases/backroom-deal-rules-out-same-sex-unions-in-slovak-constitution/ 738 http://www.loc.gov/law/foreign-news/article/slovak-republic-marriage-defined-as-between-one-man-and-onewoman/

 

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Marriage between a Slovak citizen and a foreigner concluded in a foreign country, before a competent authority, may be recognized in Slovakia with all its legal consequences only if it is valid in the country where it was concluded and if there are no legal obstacles provided by the Slovak law (e.g. condition of age, monogamy). In the reversed situation, i.e., a marriage celebrated between Slovak citizen and foreigner in Slovakia, the certificate issued by a foreign Registry Office is required. In certain cases, such documents can be issued by embassies. The certificate proves the legal capacity of the foreigner to enter into a marriage, namely that there are no legal impediments in his/her country of origin to get married. Once married, a foreigner can apply for a permanent residence permit under the provisions of Act on residence of foreigners.

2.22.3 National policy regarding homosexuals and same-sex couples The government in 2012 established a committee in support of “the promotion of the human rights of LGBTI persons.” 739 Simultanously, in the same year, members of the Slovak Parliament rejected a proposal that would have allowed same-sex couples to register their partnerships740. On 18 February 2015, the Slovak government passed the nationwide Human Rights Promotion and Protection Strategy which has been seen as a further step in setting the policies for Slovakia with respect to the protection and promotion of human rights. The report was prepared as a result of visit the Council of Europe Commissioner for Human Rights to Slovakia, which took place on 15-19 June 2015, and included the conclusions and recommendations addressed to the authorities of the Slovak Republic. However, on on 13 January 2016, the Slovak government abandoned its plan to adopt a National Action Plan on LGBTI Equality. The Action Plan declared: "Gays and lesbians, as well as bisexuals and transgender, have for centuries been exposed to homophobia, transphobia and other forms of hatred and discrimination. There is a need for particular measures to eliminate their criminalization, marginalization, social exclusion and violence based on sexual orientation or gender identity." The first NGO in Slovakia to declare the aim of equal rights for LGBTIQ people was founded in 2007741 under the name of Queer Leaders Forum742. The forum defends rights of nonheterosexual people, and aims to complex and absolute – civic, legislative and social – equalization of LGBT people with the major society.                                                                                                                       739 http://www.washingtonblade.com/2015/10/15/eu-report-urges-slovakia-to-further-protect-lgbtrights/#sthash.6FCbLWEn.dpuf 740 http://www.washingtonblade.com/2015/10/15/eu-report-urges-slovakia-to-further-protect-lgbt-rights/ 741 Salzburg Global Seminar - Session 506 Directory LGBT and Human Rights:New Challenges, Next StepsP. 18 742 http://www.qlf.sk/

 

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2.22.4 Referendum (February 2015) The latest most recurring issue in respect of same-sex couples is a national referendum on banning same-sex marriage that was held on 7 February 2015. The referendum was initiated by the conservative group Alliance for Family, that gathered 400,000 signatures calling for a vote on the law.743 The AZR launched the “publicity” campaign on 9 January, explaining that the reason behind the referendum is children’s right to have a mother and a father.744 The Slovak nationals were supposed to answer four questions which all were seen by the human rights bodies and representatives as questions seeking to limit the rights of LGBT people and seeking to inhibit sexuality education.745 The referendum was challenged in front of Constitutional Court. On 28 October 2014, the Constitutional Court ruled three out of four questions admissible. One relates to the definition of marriage as a union between a man and a woman, whereas a second seeks to ban adoption of children by “same-sex couples or groups.” A third question that was deemed constitutional relates to sexuality education, and seeks to include opt-outs if parents do not agree with the content of the education. Only a question seeking to prohibit any future samesex registered partnerships was deemed unconstitutional. Co-President of the LGBTI Intergroup-designate Daniele Viotti MEP commented on the judgment, saying: “I do not understand how the Constitutional Court ruled that these questions are in line with the Slovak Constitution, which specifically forbids referenda on issues of fundamental rights and liberties.” The Conference of Slovak Bishops widely supported the referendum. The Church not only sponsored the AZR, but also has been mobilizing voters. Believers were directly told to answer all three questions with "yes" - the way Pope Francis said he would vote.746 In June 2015, the Pope indirectly supported the referendum by saying: “I greet the pilgrims from Slovakia and, through them, I wish to express my appreciation to the entire Slovak church, encouraging everyone to continue their efforts in defense of the family, the vital cell of society.”747 Despite all the efforts, only one-fifth(21,4%) of the eligible voters went to vote, far below the 50 percent threshold necessary for the referendum to be binding748. As for those who voted, a clear majority, 95, 92 and 90 % agreed with the respective 3 statements.749                                                                                                                       http://www.reuters.com/article/us-slovakia-referendum-idUSKBN0L91OQ20150205 http://spectator.sme.sk/c/20053236/turnout-key-to-referendum-result.html 745 http://www.lgbt-ep.eu/press-releases/slovak-constitutional-court-decides-homophobic-referendum-will-goahead/ 746 Iveta Ondruskova, Slovakia holds referendum on gay marriage, 2015 available on http://www.dw.com/en/slovakia-holds-referendum-on-gay-marriage/a-18241863 747 http://www.huffingtonpost.com/2015/02/06/pope-slovakia-referendum_n_6630876.html 748 http://www.lgbt-ep.eu/press-releases/homophobic-referendum-slovakia-fails-over-low-turnout/ 743 744

 

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2.22.5 Summary Predominantly Roman Catholic Slovakia, unlike its neighbor, the Czech Republic, is more conservative on issues dealing with lesbian, gay, bisexual, transgender (LGBT) rights. The amendment to the Constitution from 2014 has been said as not being a defense for the marriage but “its sole purpose is to limit the rights of lesbian and gay couples. It will have consequences for all other forms of families, like single parents or unmarried couples.”750 Human Rights Watch alarmed that the proposal for the referendum would violate the standards protected under the European Convention on Human Rights (ECHR) which Slovakia has ratified and, as such, its Constitution gives precedence over domestic law.751 According to the Amnesty International, a blanket ban on same-sex adoption of children violates the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It demands that states must ensure that everyone has “…the same rights and responsibilities as parents, irrespective of their marital status”. 752

                                                                                                                                                                                                                                                                                                                                                                                749 http://www.independent.co.uk/news/world/europe/referendum-to-entrench-gay-marriage-ban-in-slovakiaoverwhelmingly-supported-but-fails-due-to-low-10031769.html 750 Quote by Ulrike Lunacek MEP, Co-President of the LGBT Intergroup 751 https://www.hrw.org/news/2015/02/06/dispatches-unholy-alliance-slovakias-referendum-risks-rights 752 https://www.amnesty.org/en/latest/news/2015/02/slovakia-referendum-marriage-panders-homophobicdiscrimination/

 

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2.23 Spain Written by Jordi Martínez i Carrasco753

2.23.1 General principles of jurisdiction The parliamentary monarchy Spain comprises of seventeen autonomous communities (comunidades autónomas) and two autonomous cities (ciudades autónomas). Spain’s official national language is Spanish, while Catalan, Galician, and Basque are also official in the respective regions. Spain’s legal system is based on the civil law tradition. It is a Member State of the European Union since 1986. The Spanish Constitution754, which took effect on the 29th December, 1978, establishes the form of government. Executive power is vested in the Monarch, who is the head of state, but whose role is primarily ceremonial. The monarchy is hereditary. Executive power is exercised primarily by the Prime Minister (Presidente), who is the head of Government, with the advice of the Council of Ministers (Consejo de Ministros). The President is nominated by the Monarch and elected by the National Assembly. Generally, the Monarch nominates the leader of the party, or the parties, who form a majority of the National Assembly. Members of the Council of Ministers are appointed by the President. Finally, the Council of State (Consejo del Estado) is the supreme consultative organ of the government, although its recommendations are non-binding. Legislative power is vested in the bicameral National Assembly (Cortes Generales), which consists of the Congress of Deputies (Congreso de los Diputados) and the Senate (Senado). The 350 Members of the Congress of Deputies are elected by the people on the basis of proportional representation. 208 of the 259 Members of the Senate are directly elected by the people, while the remaining fifty-one Members are appointed by the regional legislatures. Members of both houses serve four-year terms. All legislation is introduced in the Congress of Deputies, although it may be initiated by the leader of the Senate. The Senate has the power to amend or veto legislation initiated by the Congress of Deputies. Once passed by the National Assembly, legislation must be promulgated by the King in order to become law.755 Judicial power is vested in the courts, which are administered by the General Council of Judicial Power (Consejo General del Poder Judicial). The Constitutional Court (Tribunal Constitutional) is the highest court for constitutional matters. It also deals with disputes between the central government and the autonomous communities regarding the attribution of competences. It also plays a crucial role regarding the protection of fundamental rights. For all Jordi Martínez i Carrasco is an undergraduate student (LLB Law and LLB Political Science) at the University of València (at the time an exchange student at Utrecht University) 754 Spanish Constitution (Constitución Española) passed on the 27th of December of 1978 and which entered into force on the 29th December of 1978. Available in English at: http://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/const_espa_texto_ingles_ 0.pdf. [accessed on the 15th May 2015]. 755 Guide to Foreign and International Legal Citations. Journal of International Law and Politics. New York University School of Law. 2006. 753

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other subject matters, the Supreme Court (Tribunal Supremo) is the highest court. The National Audience (Audiencia Nacional) has jurisdiction to hear matters of national interest, such as extradition proceedings or crimes against the Crown. The autonomous communities are defined as geographical collectives of provinces and municipalities. Each community is granted legislative autonomy and is entitled to self-regulate in certain areas. Within those transferred competences, the acts passed in the communities have the same force of law that the ones passed within the central level of the State. This decentralized characteristic of the State is relevant regarding the legal protection of LGTB and same-sex couples, since there are different regulations that have been enacted at this regional level. As far as the protection of human rights is concerned Spain signed the two UN human rights treaties (ICCPR and ECESCR) in New York less than a year after Franco’s death. In April 1977 they were ratified, and from July of that year, Spain became bound by these treaties. Meanwhile at the national level, numerous liberalizing measures had been taken over a wide front. On 15th, June 1977, the first free and democratic elections were held on the basis of the Ley para la Reforma Política (Act on the Political Reform), and a start was made on drafting a new constitution. In November 1977, Spain was admitted to the Council of Europe. Ratification of the ECHR and acknowledgement of the individual right of complaint and of the jurisdiction of the European Court of Human Rights was then only a question of time. The ratification of a number of major conventions of the International Labour Organization and of the European Social Charter would also not be long in coming.756 Fundamental rights are explicitly protected under the 1978 Spanish Constitution. The Constitution itself contains a catalogue of fundamental rights: with its 46 articles, Title I of the Constitution ‘Fundamental rights and duties’ (De los derechos y deberes fundamentales) even became the longest title of them all. Besides, Article 10(2) refers to the Universal Declaration of Human Rights and the human rights-related treaties and conventions ratified by Spain.757 The core of the fundamental rights (the so-called derechos fundamentales fundamentalísimos) are included in Section I of Chapter 2 of the Constitution: ‘Fundamental rights and public liberties’ (Articles 15-29). Although Article 14 is not formally included, it is to be considered as part of this core. This Article lays down the principle of equality: ‘Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance’. This Article is of a great importance for the recognition of rights to same-sex couples, as its clause ‘or any other personal or social condition or circumstance’ has been used to support such claims in the sense that sexual orientation might be included in that provision of

                                                                                                                      L. Prakke; C. Kortmann. Constitutional Law of 15 EU Member States. Kluwer. 2004. Deventer, the Netherlands. P.791. 757 Article 10(2): Provisions relating to the fundamental rights and liberties recognised by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain. 756

 

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non-discrimination. Furthermore, Article 9(2)758 also plays an important role in supporting the state’s action in order to combat discrimination. Moreover, Article 53(1) aims to stress the direct applicability of the fundamental rights and freedoms contained in Articles 14-38, and further stipulates that the exercise of these rights and freedoms may be regulated only by statute, which must in all circumstances respect their essential content. Where the fundamental rights and freedoms contained in the first part of the Chapter 2 are concerned, this law will have to be an organic law (Art. 81(1)). As far as the judicial protection of these rights is concerned, individuals enjoy the possibility of a double judicial and constitutional protection of their rights. First of all, pursuant to Article 161(1)(a), parties entitled to do so under Article 162 may institute proceedings challenging the constitutionality of the said laws (recurso de inconstitucionalidad). The Constitutional Court is the one in charge of the review of the legislation in the light of the Constitution’s provisions. This constitutes an indirect way to protect the individuals’ constitutional rights. As to the direct protection of individuals’ rights, Article 53(2) establishes a double protection. Firstly, a special judicial protection by which any citizen may assert a claim to protect the freedoms and rights recognised in section 14 and in division 1 of Chapter 2, by means of a preferential and summary procedure before the ordinary courts. Secondly, when no satisfaction is obtained in the ordinary courts, the individual can also lodge an individual appeal for protection (recurso de amparo) before the Constitutional Court. Therefore, in contrast with other legal systems, the Spanish Constitutional Court also analyses individual cases in order to ensure the full enjoyment of the constitutional rights for the citizens.

2.23.2 Equal rights 2.23.2.1 Individual protection/equal rights The main discrimination-related concerns in Spain are focus on racial discrimination, hate crimes (including those on the ground of sexual orientation), violence against women and unlawful treatment of refugees, migrants and asylum seekers. According to Amnesty International, Law enforcement officers continued to carry out identity checks on the basis of racial or ethnic characteristics759. Furthermore, according to the Ministry760, 39.9 % of hate crimes in 2014 were related to sexual orientation or sexual identity. In comparison with the data provided in 2013, there has been an                                                                                                                       758 Article 9(2): It is the responsibility of the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove the obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life. 759 Amnesty International Report 2014/2015. The State of the World’s Human Rights. Amnesty International Ltd. London. 2015. P. 341. 760 Available at http://www.lamoncloa.gob.es/serviciosdeprensa/notasprensa/Documents/Informe%20delitos%20de%20odio%2 02014.pdf [accessed on the 10th May 2015].

 

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increase of 13’5 % in the number of hate crimes related to sexual orientation.761 The Spanish Ministry of Internal Affairs includes not only physical aggressions, but also sexual abuse, threats, damages or harassment in the crimes committed. The European Union Agency for Fundamental Rights provides relevant information with regards to aggressions or threats suffered by members of the LGTB community on the basis of their sexual orientation. In 2013, 60 % of LGTB people in Spain claimed to have suffered physical aggressions or threats (the average in the EU was 59 %).762

2.23.2.2 Recognition of relationships/family protection The term ‘family’ is not defined in the Spanish Constitution. Article 18 includes the right to personal and family privacy and Article 39 lays down the obligation for the public authorities to ensure social, economic and legal protection of the family. The average marital age for men is 34 while it is 32 for women (2013), according to the official data provided by INE, the Spanish Statistical Office.763

2.23.2.3 Recognition of homosexual relationships Spanish legal system has suffered an important change regarding the status of same-sex couples in the last decade. In 2005 it became the first South-European country to recognize same-sex marriage within the legislation. Conisering Spains modern history, this legal step is quite remarkable. During the dictatorship of Franco (1939-1975), homosexuality in Spain was related to persecution, exile and even murder. The Crooks and Vagrants Act was modified in 1954 to include the category of homosexuals (next to gypsies, drug addicts and vagabonds) and to allow repression and punishment of homosexual practices during the first part of this period. In 1971 the Law of Dangerousness and Social Rehabilitation took effect. This statute considered homosexuals dangerous people and caused their separation from the society in an attempt to rehabilitate them. During the period in which this law was enforced (1971-1979) approximately 1,000 homosexual men were convictedlocked up.764 They were taken to jail or to special disciplinary centers for homosexual men. At the same time lesbians, once again at the cost of their invisibility, escaped repression during the dictatorship (Calvo, 2002). In 1975, Franco died and Spains transition towards democracy began. By the 1980s the LGTB movement’s primary goals were achieved (through the abolishment of the Law of Dangerousness and Social Rehabilitation and the legalization of homosexuality) and it suffered a decline in activism.765                                                                                                                       Available at: http://ep00.epimg.net/descargables/2015/04/14/f4fff37cc59b17345e01d9339b3afc59.pdf. Data provided by the European Union Agency for Fundamental Rights. 2014. Available at: http://elpais.com/elpais/2014/09/28/media/1411922281_131655.html. 763 Instituto Nacional de Estadística (INE). Available at: http://www.ine.es/jaxiT3/Tabla.htm?t=1380. 764 J. Pichardo Galán. Same-sex couples in Spain. Historical, contextual and symbolic factors. Available at: https://samesex.web.ined.fr/WWW/04Doc124Ignacio.pdf. 765 Herrero Brasas, 2001:315. 761 762

 

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During the 1990s, equality for homosexual people surfaced as a question in the political debate. The Spanish Workers Socialist Party (Partido Socialista Obrero Español, PSOE), in power since 1982, began to establish relations with the LGTB movement. In the final years of their term of office they acceded to some of its demands (1994-1996) with the recognition of rights for de facto couples in certain laws, especially in the Law of Urban Leasing (1994), which recognizes the right to subrogate a contract in a de facto couple regardless of sexual orientation.766 Therefore, an analogy can be drawn between the process by which the homosexual people in Spain have underwent from suffering underwent discriminatory laws, to becoming social actors who also demand their right to equal citizenship and the transition process towards a democracy in Spain. The Spanish Constitution, enforced since the end of 1978, promotes the values of freedom, dignity, free development of personality, equality in the eyes of the law and participation.767 It is the recognition of these values in Spanish society that has created the possibility for samesex couples to claim equality with regard to the law. The Spanish Constitution specifically compels public authorities to ensure the social, economic and legal protection of the family (Art. 39,1), ensuring that family is one of the foundations on which the social organization of Spanish society is sustained. As Jaurena i Salas points out768, although in the Spanish legal system any marriage constitutes a family, marriage is not an indispensable requirement for creating a family. Both elements (marriage and family) appear in different articles of the Constitution (32 and 39 respectively) and are not necessarily connected. Hence, the access of homosexuals to both institutions (marriage and family) would not require constitutional reform, since the Spanish Constitution never defined what a family is. This allows the extension of the concept to non-traditional families. Regarding marriage, the Constitution indicates the right of man and woman to get married, but it does not specify that it must be between a man and a woman.769 Although one can argue that this connection is implied from a historical approach of interpretation of that provision. In fact, during the period that preceded the approval of the same-sex marriage act, the Constitutional Court delivered its ruling in a case770 where a constitutional complaint was filed, by the widower of a deceased same-sex partner, to request the award of a widow’s pension. The law, however, reserved access to this benefit only to opposite-sex married couples. Granting this                                                                                                                       Pérez Cánovas, 2001, 497-498. 1978 Spanish Constitution. Articles 10.1, 14, 17.1 and 23.1. 768 JAURENA I SALAS, F. ‘The Law on Stable Unions of Couples in the Catalonia Autonomous Region of Spain’ in R. Wintemute and M Andenas (eds), Legal Recognition of Same-sex Parnetships (Hart Publishing, Oxford). 2001. P. 515. 769 Article 32.1 Spanish Constitution: ‘Man and woman have the right to get married with total legal equality’. 770 Case No. 222/1994. Spanish Constitutional Court. Accessible at: http://www.tribunalconstitucional.es/en/Pages/Home.aspx. 766 767

 

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right would amount to extending the effects of same-sex civil unions to those of different-sex marriages, without a previous statute and directly based on the Constitution,. This request was dismissed with the argument that there is no constitutional protection of (either different or same-sex) more uxorio unions. In a later ruling771, the Constitutional Court stated it followed from this decision that the Legislator was free to restrict marriage to different sex couples, but not that this measure would be the only constitutionally valid option.772 Law No. 13/2005, of 1st July 2005, introduced several changes to the Civil Code, the most relevant of which were the addition of a paragraph to Art. 44, according to which ‘marriage will have the same requisites and effects when both spouses are of the same or different sex’, and the introduction of the possibility of joint adoption by same-sex couples.773 Its preamble stated that it was aimed at the promotion of effective equality of citizens in the development of their personality [Art. 9 (2) and 10(1) of the Constitution], the preservation of freedom of living together [Art 1 (1) of the Constitution], and the implementation of real equality in the enjoyment of rights without any discrimination based on sexual orientation. After its approval, 71 centre/right-wing MPs (Partido Popular) lodged a complaint before the Constitutional Court asking it to quash the new law as unconstitutional.774 The Court came to deliver its judgement on 6th November 2012775, more than 7 years later. During this time, however, the law was fully in force and not suspended, thereby allowing same-sex couples to perform marriage.776 With a majority of judges in favour of its constitutionality and only three against, the Court upheld it. The applicants claimed that the principle of equality was violated to the extent that granting the right to marry to same-sex couples amounted to discrimination (of different-sex couples) for lack of differentiation. The Court held, however, that assertion to be without any merit: in the Court’s opinion, there is no subjective right to different legal treatment and hence inequality for excess of equality does not constitute a valid reason to invalidate the statute. The applicants also invoked the principle of equality in its dimension of prohibition of arbitrariness.777 The Court dismissed this argument: the different treatment is not the result of normative discrimination (as mentioned, it is a case of a non-objectionable excess of equality) and the measure at stake does not lack a rational explanation (it pursues a legitimate goal).                                                                                                                       Case No. 198/2012. Spanish Constitutional Court. D. Gallo; L. Paladini; P. Pustorino. Same-sex couples before Nationa, Supranational and International jurisdictions. Springer. Rome, Italy. 2014. P. 300. 773 See para. 7 of the single Art. of Law No. 13/2005 of 1st July 2005. For an overview, see Baza´n (2009). 774 The MPs were backed by a report of the General Council of the Judiciary—see Consejo General del Poder Judicial (2005), available at http://www.poderjudicial.es/cgpj/es/Poder_Judicial/Consejo_General_del_Poder_Judicial/Actividad_del_CGPJ/ Informes/Estudio_sobre_la_reforma_ del_Codigo_Civil_en_materia_de_matrimonio_entre_personas_del_mismo_sexo. 775 Judgment 198/2012 of the Constitutional Court. Available at: http://www.boe.es/boe/dias/2012/11/28/pdfs/BOE-A-2012-14602.pdf. 776 Ahumada-Ruiz (2013), p. 429. 777 See Art. 9(3) of the Spanish Constitution. 771 772

 

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Finally, in contrast with the literal and historical interpretation of the provisions argued by the applicants (by which only ‘men’ and ‘women’ are entitled to marry each other), the Court adopted an evolutionary constitutional interpretation based on the idea of legal culture that sees law as a social phenomenon bound to the reality in which it is embedded. According to the Court, constitutional interpretation must evolve so as to accommodate modern life realities and circumstances and thence guarantee the very relevance and legitimacy of the Constitution itself.778 According to this approach, the institution of marriage would not have become unrecognisable after the enlargement of its subjective scope by Law n. 13/2005, due to the evolution of the concept of marriage in the Spanish society. The Constitutional Court states that the essential elements of marriage are: the equality of spouses, the free nature of the consent to celebrate marriage with the chosen person, and the necessity to demonstrate the consent. These three elements were still present after the approval of Law No. 13/2005 in all types of marriage. Therefore, the Court stated that the enlargement of the subjective scope of the right to marriage to same-sex couples was not in breach of the Spanish Constitution. This Law also introduced the possibility of joint adoption by same-sex couples.779

2.23.3 National policy The main NGO working on the topic of LGTB rights in Spain is FELGTB780, a federation of different lesbian, gay, bisexual and transsexual associations within the country. With more of 50 associations (students’ association, sports’ association, LGTB with disabilities, people with HVI, etc), FELTB focus their activities on the public recognition of substantive equality, the increase awareness about LGTB issues within the society, the denounce task and the training of their members. The Federation usually works with the political parties, the trade unions and associations in order to help to include measures that would lead to the equality of LGTB people. As far as the national policy is concerned, legislative and other measures have been taken in order to both recognize LGTB rights and prohibit discrimination on the ground of sexual orientation. At the national level, Spanish Criminal Law includes the sexual orientation as an aggravating factor in Hate crime. Art. 510(1) of the Spanish Criminal Code781 explicitly includes sexual preference as an aggravating circumstance, which would lead to an increase in the punishment.

                                                                                                                      D. Gallo; L. Paladini; P. Pustorino. Same-sex couples before Nationa, Supranational and International jurisdictions. Springer. Rome, Italy. 2014. P. 302. 779 Paragraph 7 of the Law 13/2005. Available at: http://www.boe.es/boe/dias/2005/07/02/pdfs/A2363223634.pdf. 780 See: http://www.felgtb.org/. 781 Art. 510(1): Those who provoke discrimination, hate or violence against groups or associations due to racist, anti-Semitic reasons or any other related to ideology, religion or belief, family situation, belonging to an ethnic group or race, national origin, gender, sexual preference, illness or handicap, shall be punished with a sentence of imprisonment from one to three years and a fine from six to twelve months. Available at: file:///C:/Users/Jordi%20Martinez/Downloads/Spain_Criminal_Code_Codigo_Penal.pdf. 778

 

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Within the labour market, The Law on Fiscal, Administrative and Social Measures of 2003 implements Directive 2000/78/EC, and contains provisions on equal treatment and nondiscrimination at the workplace. Positive measures are allowed to guarantee the principle of equal treatment and nondiscrimination in access to employment, membership or involvement in organisations of workers or employers, working conditions, professional promotion, vocational training and continuing professional development. The Constitutional Court recently ruled that the Constitutional safeguard against discrimination also applies to individuals dismissed because of their sexual orientation. The case concerned an employee who was severely overworked and then dismissed. The Court ruled that the company’s behaviour was solely motivated by the homophobic instincts of the employee’s line manager.782 At the regional level, different laws passed in three Autonomous Communities are relevant for their innovating character. They all focus on combatting discrimination on the ground of sexual orientation and sexual identity as the aim of the law in a comprehensive manner within their competences. Firslty, the Parliament of Galicia passed a Law Against Homophobia in April of 2014.783 This law includes the obligation upon the Xunta (regional government) to introduce emotional and sexual education-related courses in the curriculum of some university degrees as well as the obligation for the public health care services to guarantee the sex reassignment surgery. Moreover, the Law reaffirms the right of same-sex couples to adopt children and the definition of the term ‘family’ regardless of the different or same-marriages. Also the Catalan Parliament (Parlament) passed a Law Against Homophobia in October of 2014.784 Two features make it pioneer in this field: the inclusion of fines for those behaviors which would not fall under the scope of a crime and the shift of the burden of proof. More recently, the Parliament of Extremadura passed a Law Against Homophobia in April of 2015.785 This law does not only include the information and awareness in the education system but also the consideration of homophobic crimes as hate crimes and the possibility for the Administration to act as prosecution in legal proceedings before the Court defending the victim of such a crime.

                                                                                                                      K. Calvo (2008) The situation concerning homophobia and discrimination on grounds of sexual orientation in Spain. Sociological Country Report. 783 Law 2/2014 on equal treatment and non-discrmination of lesbians, gays, bisexual and transsexuals in Galicia. Available at: http://www.xunta.es/dog/Publicados/2014/20140425/AnuncioC3B0-220414-0001_es.html. 784 Law 11/2014 for guaranteeing the rights of lesbians, gays, bisexuals, transgenders and intersexuals and for the elimination of the homophobia, biphobia and transfobia. Available at: http://www.sindic.cat/site/files/302/llei_11_2014_LGTBI.pdf. 785 Law 12/2015 on social equality of lesbians, gays, bisexuals, transsexuals, transgenders and intersexuals and on public policies against the discrimination on the ground of sexual orientation or gender identity in the Autonomous Community of Extremadura. Available at: http://doe.gobex.es/pdfs/doe/2015/680o/15010012.pdf. 782

 

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2.23.4 Summary The legal status of same-sex couples in Spain has shifted from penalization to full recognition of marriage on equal footing with different-sex marriages in barely thirty years. Since 2005 Spanish legislation has extended the personal scope of the right to marriage so as to include same-sex couples, as well as their right to adoption. The prohibition of discrimination on the ground of sexual orientation is recognized within the labour market framework as well as hardly penalized within the Criminal Code. The decentralized characteristic of the State has lead to different policies regarding the prohibition of discrimination at the regional level. Thus, three autonomous communities have already enacted several laws in order to ensure the elimination of such a discrimination in different areas (legal, health-care system, education etc.) This process is however still ongoing.

 

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2.24 Sweden Written by Anastasios Charalampous786

2.24.1 Introduction Sweden belongs to the European countries which are pioneers in matters of social consciousness of LGBT (Lesbian, Gay, Bisexual, Transgender) and especially in establishing rights for same sex couples. Step by step various measures have been taken in the last decades to improve the situation: from the registered partnership (1994) to the same-sex couples marriage(2009), including also the possibility for the registered partners (nowadays spouses) to be considered as adoptive parents (2003) and the rights of lesbians to access assisted fertility treatments (2005). Furthermore, legislation prohibits sexual orientation discrimination, i.e. in employment (1999); university education (2002); goods and services both public and private, including housing (2003); and in pre-school, primary and secondary education. The purpose of this short analysis is to present the current legal status of same-sex couples in Sweden, under the perspective of the national and European law.

2.24.2 General principles of jurisdiction Sweden has a written Constitution consisting of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression. The Instrument of Government contains a special chapter, Chapter 2, entitled "Fundamental rights and freedoms". Like every country with a written constitution, fundamental laws take precedence over all other laws. The Riksdag (Parliament) is Sweden's legislative assembly. A majority of the Parliaments decisions are based on proposals for new laws or amendments to existing laws presented by the Government. Legislation is the primary source of law, while case law plays a much more subordinate role, often clarifying the scope of existing statutory on the basis of statements made in the legislation's preparatory works consisting of government bills and committee reports.787 The courts are the backbone of the judicial system in Sweden, which also comprises authorities responsible for crime prevention and investigations.788 Sweden has two parallel court systems, the general courts which include district courts, courts of appeal, and the Supreme Court, and the general administrative courts that are comprised of county administrative courts, administrative courts of appeal, and the Supreme Administrative Court. In addition, there are Anastasios Charalampous is an undergraduate Law student at the Aristotle University of Thessaloniki.   Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122. 788 That is to say the police, the regional public prosecution offices and the Swedish National Economic Crimes Bureau, the National Board of Forensic Medicine and the Prison and Probation Service. More information can be found on the official website: http://www.government.se/sb/d/2138 786

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several special courts and tribunals, such as the Labor Court and the Market Court, that hear specific kinds of cases and matters. Due to the absence of a constitutional court, individuals can claim their constitutional rights before the aforementioned courts. Since the legal systems in the Scandinavian countries do not belong to the case law tradition, leading cases (precedents) have (in Sweden) been said to affect the outcome of subsequent cases only because of their persuasive effect, not because of any binding effect stricto sensu. A new government agency, the Equality Ombudsman, was established on 1 January 2009. As a consequence, the Equal Opportunities Ombudsman, the Ombudsman against Ethnic Discrimination, the Disability Ombudsman and the Ombudsman against Discrimination because of Sexual Orientation were all phased out on 31 December 2008. The principal task of the Equality Ombudsman is to ensure compliance with the new Discrimination Act. The Ombudsman registers and investigates complaints relating to the bans against discrimination and harassment specified in the Discrimination Act789. This law prohibits discrimination related to a person’s sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age. Discrimination on the grounds of sexual orientation is defined as unjust or offensive treatment that is related to homosexuality, bisexuality or heterosexuality790 The Ombudsman may also represent victims of discrimination free of charge in court.

2.24.3 Equal Rights 2.24.3.1 Individual protection/equal rights Under Chapter 1 paragraph 2 of the Instrument of Government, public institutions are to “combat discrimination of persons on grounds of gender, colour, national or ethnic origin, linguistic or religious affiliation, functional disability, sexual orientation, age or other circumstance affecting the private person”. On 1 January 2009 the new Discrimination Act791 entered into force. The purpose of the Act is to combat discrimination and promote equal rights and opportunities regardless of sex, transgender identity or expression, ethnic origin, religion or other belief, disability, sexual orientation or age. The two discrimination grounds age and transgender identity or expression are new. Protection against discrimination has its constitutional protection in the Instrument of Government, Chapter 2. According to Art. 12.: "No act of law or other provision may imply the unfavourable treatment of anyone because they belong to a minority group by reason of ethnic origin, colour, or other similar circumstances or on account of their sexual orientation". Moreover, according to Art. 13.: "No act of law or other provision may imply the unfavourable treatment of anyone on grounds of gender, unless the                                                                                                                       789

Equal rights and opportunities regardless of sexual orientation or transgender identity or expression, Ministry of Integration and Gender Equality, October 2009.   790  For further information see: http://www.rfsl.se/?p=3300   791  An english version is available at the website of the Government Offices of Sweden (http://www.government.se/information-material/2015/09/discrimination-act-2008567/)  

 

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provision forms part of efforts to promote equality between men and women or relates to compulsory military service or other equivalent official duties." Gender equality is one of the cornerstones of modern Swedish society. The aim of Sweden’s gender equality policies is to ensure that women and men enjoy the same opportunities, rights and obligations in all areas of life. In the Global Gender Gap Report 2014,792 Sweden is named as one of the world leaders in equality, placing itself in the 4th position worldwide. The attitudes toward LGBT persons among the Swedish population are largely positive, as shown in a survey on attitudes toward LGBT persons throughout Sweden793. During the last 15 years many surveys took place under the supervision of Ministries, universities or organisations. Some of the key findings of those researches can be summarized to the following: •

Underreporting of hate crime against LGBT persons is a problem, since many people who interviewed in some of the victim studies had experienced a hate crime, but only few reported it to the police794 . It should be mentioned that the provisions in Swedish constitutional and criminal law make it a crime to, in any way, disseminate a message that includes threats or disdain towards a group of people on ground of their race, colour of skin, nationality, ethnicity, faith or sexual orientation.795 Besides the provision against agitation of this kind, there are other penal provisions relating to actions or expressions of a homophobic or discriminatory nature. One example is the provision against unlawful discrimination, which makes it an offence to discriminate against someone on the grounds of their sexual orientation in connection with a business activity. The prohibition also targets public employees and people holding public posts.

Sweden does not appear to ban or prohibit LGBT demonstrations or gatherings.796 Pride parades and other LGBT events enjoy the same rights as all other political demonstrations. Occasional attacks on Pride participants still occur in Stockholm, however.

LGBT visibility is one of the most relevant issues in labour market.797 An investigation conducted by Arbetslivsinstitutet (The National Institute for Working Life) showed that 50 per cent of LGB respondents were not open at work. Of those, 40 per cent avoided taking part in conversations due to fear of being ‘revealed’. Almost 30 per cent of

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For more details see: http://reports.weforum.org/global-gender-gap-report-2014/economies/#economy=SWE    This can be easily shown by the findings of the Special Eurobarometer survey on discrimination in the EU of November 2009: Using a 10-point ‘comfort scale’ (with ‘10’ indicating most comfortable), individuals were asked to indicate their level of comfort with an LGBT person holding the highest political office. The EU average was 6.5 points, with Sweden (8.7), Denmark (8.4) and the Netherlands (8.2) scoring highest, and Romania (3.4) and Bulgaria (3.2) scoring lowest.   794  The social situation concerning homophobia and discrimination on grounds of sexual orientation in Sweden, Danish institute for human Rights, March 2009.   795  It takes all kinds - Combating discrimination on grounds of sexual orientation and gender identity in the school context, a project in nine European countries, Evguenia Jane Klementieva (ed), 2013, The Danish Institute for Human Rights , pp. 22-25.   796  The social situation concerning homophobia and discrimination on grounds of sexual orientation in Sweden, Danish institute for human Rights, March 2009.   797  ut supra   793

 

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homosexual and bisexual women said that demeaning statements about LGB persons are common at work, compared to only 8 per cent of the heterosexual women. The penal provision on agitation against a national or ethnic group offers protection against threats or expressions of contempt directed at a national, ethnic or other such group with allusion to sexual orientation. Other penal provisions that can be used to protect individuals against abuse and violation with homophobic overtones are those dealing with defamation, incitement, assault, unlawful threat, molestation and inflicting damage. If the motive for a crime was to violate a person or a group of person on grounds of sexual orientation, this is to be regarded as an aggravating circumstance. However, racial discrimination has been raised over the last years in the particular form of Afrophobia. Afro-Swedes and Africans are subjected to racist acts and hate speech in Sweden despite efforts from the Government to combat such acts. The United Nations Working Group of experts on people of African descent has warned about the problem by its official announcement dated to December 2014.798

2.24.3.2 Recognition of relationships/family protection Swedish law recognises both formal and informal relationships thus granting the subsequent rights. After the Registered Partnership act was repealed in 2009, the only form of formal relationship is currently the gender-neutral marriage. The legislation regarding marriage is found in the Swedish Marriage Code, which regulates, for example, marriage conclusion and divorce, and the rights and duties of the spouses during marriage and upon its termination by divorce.799 On the other hand, two people who habitually live together as a couple sharing a joint household are called ‘cohabitees’ and their relationship is regulated by the Swedish Cohabitation Act (Sambolag 2003:376). Traditionally, the right to marriage and family life was recognised only for heterosexual couples. However the need for equality demands equal rights irrespective of sexual orientation. The Swedish Parliament had already stated in 1973 that "cohabitation between two persons of the same sex is a perfectly acceptable form of family life from society's point of view"800 and few years later (1978) a parliamentary committee was set up by the Swedish government to investigate the living conditions of homosexual people in Swedish society.801 In 1987 under the Homosexual Cohabitees' Joint home Act, de facto/cohabitation relationships of same-sex couples were given a similar legal status to those of opposite-sex couples in Sweden. However, at                                                                                                                       798 Report of the Working Group of Experts on People of African Descent on its sixteenth session, Addendum, Mission to Sweden, 25 August 2015. 799 Maarit Jänterä-Jareborg, Margareta Brattström and LisaMarie Eriksson, National Report: Sweden, March 2015, available at: http://ceflonline.net/wp-content/uploads/Sweden-IR.pdf 800 David Brandley, A Family Law for Europe? Sovereignty, Political Economy and Legitimation, in Katharina Boele-Woelki (eds): Perspectives for the Unification and Harmonization of Family law in Europe, 2003, pp. 65-104. 801 Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina BoeleWoelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122.  

 

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the same time, it was not felt that there was a need (or an opportunity) for a formalisation of those relationships.802 In 1989, Denmark's decision to create a special form of legal recognition for homosexuals under the Registered Partnership Act was a progressive development. The other Scandinavian countries, which share a common legal tradition in matters of family law, followed the movement through the establishment of similar acts. The Swedish Registered Partnership Act entered into force 1 January 1995803. The Act was adopted explicitly to create a possibility for same-sex couples to legalise their relationship in order to have most of the legal rights and obligations of a heterosexual marriage applied to their relationship. At the same time, to simply open up access to marriage under the Marriage Code itself for same-sex couples was not considered politically possible. According to the general equal treatment rule of the Registered Partnership Act (art. 1 of chapter 3), the legal consequences of a registered partnership are the same as that of a marriage and all provisions in Swedish law regarding married spouses apply mutatis mutandis to registered partners, unless specifically exempted804 On April 1, 2009, the Riksdag(Parliament) in a vote of 261 to 16, passed a law permitting samesex marriages, replacing the Registered Partnership Act of 1994. Under the nowadays legal regime, the provisions of the Marriage Code apply in the same manner, regardless of whether the spouses are of different sexes or the same sex (gender neutral marriage). It must be noted that in Sweden, a double-track system of marriage celebration applies, which means that a legally valid marriage with full civil law effects can be celebrated either in a secular form or in a religious form, by a denomination authorised by the state to officiate at marriages.805 The gender-neutral marriage law gives same-sex couples the option of either continuing a legal partnership or applying for marital status. A partnership (civil union) can be transformed into a marriage if the couple jointly notifies the Swedish Tax Agency of their intention. The possibility of transformation is not limited in time. Instead of applying to convert a registered partnership into a marriage, a couple can choose to be married under Chapter 4 of the Marriage Code. No examination of the impediments to a marriage is required for marriage for this special ceremony.806 Although couples can choose either a civil or religious ceremony to wed under the new law, individual churches can opt not to conduct the marriage ceremony. On 22 October 2009, the governing board of the Church of Sweden voted in favour of allowing its priests to                                                                                                                       802

Kenneth Reid, Marius de Waal, Reinhard Zimmermann,2015,Comparative Succession Law: Volume II: Intestate Succession, pp.312-313.   803  Lag 1994:1117 om registrerat partnerskap.   804  For a short analysis of the function of this rule/clause, see: Matti Savolainen, the Finnish and the Swedish Partnership Acts - Similarities and Divergencies in: Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Couples in Europe, 2003, pp. 24-39.   805  Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina BoeleWoelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122.   806 Ingrid Lund-Andersen, The Nordic Countries: Same Direction – Different Speeds, in: Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 3-17.

 

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marry same-sex couples in new gender-neutral church ceremonies, including using of the term "marriage" and excluding the terms "man", "woman" and references to children of the marriage. During the first year of the new Code's application, 774 same-sex couples - more women (445 couples) than men (329 couples) - married and 455 couples converted their registered partnership into a marriage.807 Parallel to the gender-neutral marriage, after the abolishment of the civil partnership, homosexual couples can form an unmarried cohabitation which is also recognised by the Cohabitees Act 2003 and ensures a same legal status as that of unmarried heterosexual couples.808 When it comes to co-habitation or “living together,” the law is the same for everyone, homosexual and heterosexual alike, just like the gender-neutral marriage law.809 As far as the cross-border issues are concerned, the recognition of the validity of same sex marriages celebrated abroad is governed by the same autonomous rules of Swedish private international law as the validity of opposite-sex marriage, whose main principle is that a foreign marriage is recognised as to its form if it is valid in the country where it was concluded or in the country or countries of nationality or habitual residence of both spouses.810

2.24.3.3 Parenthood issues Legal recognition refers mainly to the relationship between the couple. In order to promote equal rights for same-sex persons in a more advanced level, same-sex couples should acquire joint legal parental status and rights in all spheres of family life.811 Already in 2003, both stepchild adoption and joint adoption were allowed for registered partners and partner may be given joint custody of a child. Even though the majority of European countries deny joint adoption for same-sex couples, Sweden was the pioneer. In 1999 a Swedish Committee investigated children who were growing up with a homosexual parent and the parent's same-sex partner. The Committee Report (SOU 2001:10) found that there were no differences in conditions between children in homosexual and heterosexual families (in terms of psychological development, well                                                                                                                       ut supra For further details, see Maarit Jänterä-Jareborg, Margareta Brattström and LisaMarie Eriksson, National Report: Sweden, March 2015, available at: http://ceflonline.net/wp-content/uploads/Sweden-IR.pdf, where it is pointed out that the material scope of application of the Swedish Cohabitation Act is limited to the regulation of how the couple’s joint home and household goods, if they qualify as so-called cohabitation property (in Swedish: samboegendom), are to be distributed upon the termination of the relationship, in addition to protecting one cohabitee’s interests in this property against unilateral actions taken by the other cohabitee. The Act also includes a mandatory regulation on the so-called ‘take-over right’ of the couple’s joint dwelling upon termination of the relationship, regulates the partners’ freedom of contract regarding the ‘cohabitation property’ and includes procedural provisions. 809 It takes all kinds - Combating discrimination on grounds of sexual orientation and gender identity in the school context, a project in nine European countries, Evguenia Jane Klementieva (ed), 2013, The Danish Institute for Human Rights , pp. 22-25. 810 Ingrid Lund-andersen, The Nordic Countries: SAme Direction – Different Speeds, in: Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 3-17. 811 Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina BoeleWoelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122. 807 808

 

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being in the family and so on).812 A child growing up in loving surroundings where the child's needs are central is not negatively affected by the parent's homosexuality, not even child's sexual identity.813 The 2003 law reform paved the way to what successively developed into an explicit policy in Swedish legislation: no legal distinctions should be made on the basis of a person's sexual orientation.814 It followed the 2005 reform which granted lesbian couples access to medically assisted reproduction under the same conditions as opposite-sex couples. Today, married couples who are in a same sex marriage have the same rights and obligations as heterosexual married couples, including the previously mentioned parental rights. In Sweden, woman who gives birth is the default mother. If unmarried, she is also the child’s sole custodian and the father is unknown. If the mother is married, the husband is the presumed father and he shares custodial rights with the mother. Under the Registered Partnership Act and nowadays under the gender-neutral marriage, the pater est principle is not applicable to homosexuals and a procedure similar to unmarried women is followed . Thus, the birth of a child does not make the other partner/spouse a parent and there must be an internal adoption in order for second parent to acquire parental status. It is not unlikely that this option has become an important reason why in particular female couples formalise their relationships.815 This right may have been of little practical importance for gay couples, though, since while a man may father a child and be the legal father, the child would in the vast majority of cases have a legal mother who would have to surrender her parental rights in favor of the father’s partner in order for an adoption to take place.816 The other option of joint adoption seems rather a symbolic recognition.817 This is why, the majority of adoptive children are from abroad and the authorised agencies of the countries of origin are not willing to permit such adoptions. Assisted fertilisation with donated sperm is also permissible when the woman concerned is the wife, registered partner or cohabitant of another woman. The wife, partner or cohabitant is not automatically to be regarded as the parent of the resultant child together with the fertilised woman, but on condition that she has agreed to the treatment and that it can reasonably be                                                                                                                       Åsa Lundqvist, Family policy Paradoxes, Gender equality and labour market regulation in Sweden, 2011, pp. 113-115. Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina BoeleWoelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122. 814 ut supra 815 ut supra. There exists no automatic right for a step-parent to adopt his/her stepchild but only a right to be considered, upon certain conditions and procedures before the competent authority, as an adoptive parent. 816 Lina Ald´en, Lena Edlund, Mats Hammarstedt and Michael Mueller-Smith, Same-Sex Partnership for What? Evidence from Swedish Register Data, October 15, 2014, pp.16-18, available at: http://www.columbia.edu/ ~mgm2146/domestic_partnership_sweden.pdf 817 Although same-sex couples since 2003 qualify for jointly adopting children, no joint adoptions had in fact taken place by 2011. For further information, see: Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122. 812 813

 

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assumed that the child was conceived through the fertilisation.818 The child has the right to request the information about the donor which is available in the hospital records, including his identity and this is the main reason why the treatment covered by the 2005 law reform may only take place at a publicly funded hospital.819 Finally parenthood through surrogacy, which could be a promising alternative for gay couples, is not regulated by law, placing those couples in a disadvantageous position, also due to the negative practical impact of joint adoption.

2.24.4 National policy regarding homosexuals and same-sex couples. It is interesting to note that in the European jurisdictions the broader legal recognition of samesex couples was generally achieved, as a result of the efforts of organisations, associations and political parties. The European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) looks at legislation to rank countries in an annual review called Rainbow Europe. Sweden ranked fourth out of 49 European countries in 2013.820 Going back to time, it can be concluded that the Swedish legislation has always been progressive and the State has taken many initiatives to establish legal recognition for homosexuals. Same-sex sexual activity was legalized in 1944 and the age of consent was equalized in 1972. Homosexuality was declassified as a mental illness in 1979.821 As it has already been mentioned, the 1978 parliamentary committee approached the issues of legal recognition for same-sex couples relationships and parenthood leading to the Cohabitee's Joint Home Act. Another Committee which was set up to propose the Registered Partnership legislation referred to its Report (SOU 1993:38): "We wish to create a greater awareness of understanding for and openness concerning homosexuality and homosexual relationships. We also wish to accommodate the need of homosexual couples for economic and legal security in their relations". The dedication of the Swedish State to the equality rights resulted in the reformation of the Swedish Marriage Code and the introduction of the gender-neutral marriage (2009). In addition, there were many Swedish investigations regarding adoption by same-sex couples which showed that children who were growing up with a homosexual parent and the parent's same-sex partner were not negatively influenced by this fact. Thus the granting of both stepchild and joint adoption rights to partners in 2003 made Sweden the first country in the world with such legislation. From a Swedish point of view it was considered essential that the same rules on adoption would apply to both same-sex and opposite-sex couples, while on the other hand                                                                                                                       818 Ministry of Integration and Gender Equality, Equal rights and opportunities regardless of sexual orientation or transgender identity or expression, October 2009. 819 Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina BoeleWoelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122. 820 https://sweden.se/society/working-for-a-gay-and-equal-sweden/ 821 LGBT rights in Sweden, http://www.wikiwand.com/en/LGBT_rights_in_Sweden.

 

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another aim was to set a positive example for other countries.822 Apart from the State, the Church of Sweden celebrates marriages under the religious form for same-sex couples. The Church has provided theological arguments in support of this position, in particular the message of love in the New Testament, overriding other concerns.823 The Swedish society also seems to accept law reformations and support the need for equality in every field of social life. For example, in 2013, the Stockholm Pride parade had an estimated 60,000 participants and 600,000 spectators, one of several signs that LGBT people are a welcomed part of Swedish society.824 Public speech was definitely influenced by the policy for gender equality and neutrality. Sexual and gender diversity can be reflected by the use of the gender-neutral personal pronoun “hen”, a newly minted word adopted by some people as an alternative to the gender-specific “hon” and “han”, she and he. According to experts, the 'hen'revolution in Sweden has its origins on LGBT groups which have promoted the pronoun as a way to raise awareness for their cause825. Advocates say hen avoids the need to refer only to one gender or to use the cumbersome inclusive form of he/she, while also opening up the language for people who might not identify themselves as either male or female, or who wish to avoid referring to themselves as one sex or the other. Furthermore, one of the main goals of education is to respect everyone's gender identity and sexual orientation. In certain schools in Stockholm, teachers try not to use terms like “boys” or “girls.” and children’s books have protagonists who are not clearly male or female. According to Swedish law it is illegal to discriminate against anyone because of their sexual orientation or their gender identity. The new Discrimination Act promotes the role of the powerful Equality Ombudsman who also works against discrimination on the grounds of sexual orientation in all areas of Swedish society. The fact that the Ombudsman regularly addresses cases of sexual orientation discrimination especially in labour market and education as well as hate crime complaints, indicates that there are still many things to be done. In Sweden, various organisations, including employer associations, trade unions, LGBT organisations, a municipality, a state government and the Ombudsman against sexual orientation discrimination (the previous form of Equality Ombudsman), all coordinated and supported two projects that were funded by the EU EQUAL programme: ‘Homosexuals and bisexuals in the care system’ and ‘Normgiving diversity’.826 Both projects produced a training tool to help create open and inclusive workplaces. The main idea of the projects was to create a working                                                                                                                       Maarit Jänterä-Jareborg, Parenthood for same-sex couples – Scandinavian developments, in: Katharina BoeleWoelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Relationships in Europe, 2nd ed., 2012, pp. 91-122. 823 Maarit Jänterä-Jareborg, Sweden: The Same-Sex Marriage Reform with Special Regard to Concerns of Religion, Zeitschrift für das gesamte Familienrecht, 2010, pp. 1505-1508. 824 http://www.slideshare.net/MingjunHong/hongabouttheswedenscreen-55885713 825 Rick Noack, Sweden is about to add a gender-neutral pronoun to its official dictionary, April 1, 2015, The Washington Post, (https://www.washingtonpost.com/news/worldviews/wp/2015/04/01/sweden-is-about-to-add-a-gender-neutralpronoun-to-its-official-dictionary/) 826 European Agency for fundamental Rights, Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity in the EU Member States, 2010. 822

 

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environment where every individual is respected and has equal rights, regardless of their sexual orientation.827 Amongst the NGOs with constant activity in such issues is definetely RFSL(Riksförbundet för homosexuellas, bisexuellas och transpersoners rättigheter / The Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights), which is a non-profit organization that works with and for the rights of lesbian, gay, bisexual and transgender people (LGBT). RFSL works to improve the quality of life for LGBT people through political lobbying. Another organisation is the Living History Forum, a government agency with responsibility to promote democracy, tolerance and human rights, whose one of its main tasks is to assist in “combating the institutionalisation of heterosexuality in society”, thereby contributing to making visible and challenging the underlying assumptions which confine LGBT people into invisibility and exclusion.828 The State recognises the important role of NGO's for the promotion of active citizenship and strengthens their actions. For instance, the National Board for Youth Affairs administers applications for government subsidies in accordance with three ordinances, all of which aim to promote equal rights and opportunities regardless of sexual orientation and other factors.829 Such subsidies are available for organisations for homosexual, bisexual or transgender persons, for activities against racism, homophobia and similar forms of intolerance, and for local activities against discrimination.

2.24.5 Contemporary case law The fact that Sweden provides for homosexuals the right to marriage as well as adoption rights and right to medically assisted reproduction, alongside with the protection against discrimination, secures to an extended degree equality both in private and public sphere of life. In that way, the Swedish law is in compliance with international and European law, especially the European Convention on Human Rights. Only little space for violations of international obligations remains, not due to the absence of legislation but rather due to misapplication of the existing law. The latest cases before the European Court of Human Rights, raised by homosexuals against Sweden, concern asylum and refugee law. People who have been persecuted in their native countries due to their homosexuality may be granted asylum by applying so after entering Sweden to a particular Central Authority. In case of M.E. v. Sweden (Application no. 71398/12), a Libyan citizen applied for asylum claiming amongst the other that he was homosexual and had                                                                                                                       ut supra. European Agency for fundamental Rights, Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity in the EU Member States, 2010. 829 Equal rights and opportunities regardless of sexual orientation or transgender identity or expression, Ministry of Integration and Gender Equality, October 2009.   827 828

 

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a relationship with a man, N., who held a permanent residence permit in Sweden. The Authority rejected his application and the appeal, because of contradictory ground of facts and absence of justification of the life threat against the applicant. The ECHR assessed that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention since according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases, whether or not the applicant agrees (rules 3138).

 

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2.25 The Netherlands Written by Lincy Mulder830

2.25.1 General principles of jurisdiction After being part of Burgundy, the Hapsburg dynasty, Spain, and France, the Netherlands was raised to the status of a kingdom in 1815. After the separation of the Netherlands and Belgium in 1830, apart from a temporary change of the Dutch-German border after the Second World War, the political boundaries have not changed. When the Netherlands was called the Republic of the Seven United Provinces, the country was a loose confederacy with little in the form of national political institutions.831 Power rested firmly in the hands of the individual provinces. Under French rule, the government and the judiciary were centralized.832 The present Constitution of the Kingdom of the Netherlands dates back to 24 August 1815.833 Since 1815, a unitary state, a monarchy, and bicameralism have been the fundamental characteristics of the Dutch political system. The constitutional reform of 1848 brought direct elections and ministerial responsibility to parliament. The Great Pacification of 1917 introduced universal male suffrage and an electoral system of proportional representation. With the exception of the creation of corporatist bodies and their mention in the Constitution and a few other, minor, amendments, the constitutional framework of today has remained unchanged since 1917.834 The present Constitution has 141 Articles and eight chapters dealing with fundamental rights; government; the States General; Council of State, General Chamber of Audit, National Ombudsman, and permanent advisory bodies; Legislation and administration; the administration of justice, provinces, municipalities, water boards and other public bodies; and Revision of the Constitution.835 In order to make an amendment to the Constitution, a two-thirds majority of the votes cast is required in both Chambers for adopting the proposed amendment.836 Secondly, new Chambers must be elected, which too, must agree on the amendment with a two-third majority. The Netherlands is party to the most significant international human rights agreements.837 However, it did not sign the Convention on the Protection of the Rights of All Migrant Workers Lincy Mulder is an undergraduate student (LLB Political Science) at Vrije University. Â Andeweg, R.B., & Galen, A.I. (2009). Governance and Politics of the Netherlands. London: Pelgrave macmillan. 832 Andeweg, R.B., & Galen, A.I. (2009). Governance and Politics of the Netherlands. London: Pelgrave macmillan. 833 Prakke, L., Kortmann, C. A. J. M., & van den Brandhof, J.C.E. Constitutional Law of 15 EU Member States. Deventer: Kluwer. 834 Andeweg, R.B., & Galen, A.I. (2009). Governance and Politics of the Netherlands. London: Pelgrave macmillan. 835 Prakke, L., Kortmann, C. A. J. M., & van den Brandhof, J.C.E. Constitutional Law of 15 EU Member States. Deventer: Kluwer. 836836 Prakke, L., Kortmann, C. A. J. M., & van den Brandhof, J.C.E. Constitutional Law of 15 EU Member States. Deventer: Kluwer. 837 European Convention on Human Rights; the International Covenant on Civil and Political Rights; the Optional Protocol to the Covenant against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment; the Covenant on Economic, Social, and 830

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and Members of Their Families; the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others; and the Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes against Humanity.838 Many human rights, which are also known as‚ fundamental rights, are enshrined in Chapter 1 of the Dutch Constitution. It includes a non-discrimination clause in Article 1 which states that all persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted. Additionally, since 1994 there is the Equal Treatment Act839 which protects citizens against discrimination on the grounds of religion, belief, political opinion, race, sex, nationality, sexual orientation, and marital status. The Equal Treatment Act makes it unlawful to discriminate with regard to labour, offering or permitting access to goods or services, and education. Additional equal treatment laws include age and disability or chronicle disease. As previously mentioned, human rights are protected by national legislation and international agreements in the Netherlands. If you have a complaint about what you consider to be a violation of human rights, there are various institutions and organizations you can go to. The Netherlands Institute for Human Rights (College voor de rechten van de Mens) deals with complaints about discrimination in relation to, for instance, schools, housing, shopping, employment, entertainment venues and sport.840 The Institute will investigate possible (systematic) violations of human rights and the protection of those rights in the specific area. The Institute will conduct independent research and report the findings.841 As soon as your discrimination complaint is received the Institute will consider whether or not the case will be in their area of expertise.. If this is the case, the institution will start an investigation. After the investigation there will be a hearing. The assessment will be send to the person within six months after submitting the complaint. This will inform the person, whether or not the Institute is of the opinion that discrimination has actually occurred. The complaint should relate to discrimination issues in relation to school, living accommodation, shopping, work, going out or sport. In that case one may submit a complaint if feeling disadvantaged on account of: gender (man, woman, transgender); pregnancy; age; religion; sexual orientation (heterosexual, homosexual, bisexual); racial origins; nationality; handicap or chronic illness; civil status (married,                                                                                                                                                                                                                                                                                                                                                                                 Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention of the Rights of the Child; the International Convention for the Protection of All Persons from Enforced Disappearance; the Convention for the Protection of Human Rights and Fundamental Freedoms; the European Social Charter; the Convention concerning Forced or Compulsory Labour; the Convention relating to the Status of Refugees; and the Rome Statute of the International Criminal Court. The Netherlands has also signed, but not yet ratified, the International Convention on the Rights of Persons with Disabilities. Holtmaat, R. (2013). Executive summary. Country Report the Netherlands 2013 on measures to combat discrimination. Retrieved from http://www.non-discrimination.net/countries/netherlands 838 University of Minnesota. (2008). Ratification of International Human Rights Treaties – Netherlands. Retrieved from https://www1.umn.edu/humanrts/research/ratification-netherlands.html 839 Nederlandse Overheid. (2015). Algemene Wet Gelijke Behandeling. Retrieved from http://wetten.overheid.nl/BWBR0006502/geldigheidsdatum_01-07-2015 840 Government of the Netherlands. (2015). Human rights in the Netherlands. Retrieved from http://www.government.nl/issues/human-rights/human-rights-in-the-netherlands 841 College voor de Rechten van de Mens. (2014). Tasks. Retrieved from http://mensenrechten.nl/tasks

 

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in a registered partnership, neither of these); working hours (full time, part time, permanent or temporary contract); personal beliefs; or political views.842 The National Ombudsman deals with complaints about government and monitors government’s compliance with human rights.843 The National Ombudsman is independent and impartial and he is there to defend one’s interests. He also keeps a critical eye on government.844 In case of a complaint about what someone considers to be a violation of human rights, the National Ombudsman will organize an intervention with the public authority, a mediation, or an investigation and report.845 If you are not satisfied with the decision of the various institutions that help you with your complaint, then you can go to court. When the outcome in the national courts is negative but you are still convinced that your human rights were violated, one can lodge an application with the European Court of Human Rights in Strasbourg.846

2.25.2 Equal rights 2.25.2.1 Individual protection of human rights As previously mentioned, the Dutch Constitution includes a non-discrimination clause and the Netherlands is party to a number of international agreements relevant for combating discrimination. Moreover, based on Articles 93847 and 94848 of the Dutch Constitution, provisions of treaties and European legislation are directly applicable and also have priority over national law when invoked in court. There are also laws specifically on the grounds of sexual orientation.849 Article 447 in the Criminal Code proclaims that the age of consent for sexual acts is 16 years, equally for same-sex and different-sex sexual acts.850

                                                                                                                      842 College voor de Rechten van de Mens. (2014). What can the institute do for you? Retrieved from http://mensenrechten.nl/what-can-institute-do-you 843 Government of the Netherlands. (2015). Human rights in the Netherlands. Retrieved from http://www.government.nl/issues/human-rights/human-rights-in-the-netherlands 844 Nationale Ombudsman. (2014). Complaints about public administration? Contact the national ombudsman. Retrieved from https://www.nationaleombudsman.nl/english 845 Nationale Ombudsman. (2015). Procedure. Retrieved from https://www.nationaleombudsman.nl/kunnen-wij-uhelpen/procedure 846 Government of the Netherlands. (2015). Human rights in the Netherlands. Retrieved from http://www.government.nl/issues/human-rights/human-rights-in-the-netherlands 847 Article 93 Constitution: Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published. 848 Article 94 Constitution: Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions. 849 ILGA Europe. (2014). Legal summary in details on The Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/legal 850 Article 447 Wetboek van Strafrecht.

 

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Also, persecution on the basis of sexual orientation is explicitly recognized in asylum laws and policy. Council Directive 2004/83 decides that it is necessary to introduce a common concept of the persecution ground ‘membership of a particular social group’. Article 10d of the Council Directive 2004/83 decides that, depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Paragraph C2/3.2 in the Vreemdelingencirculaire 2000 provides that an LGBT asylum seeker can be eligible for a residence permit, if the person can show that he or she has substantial grounds for believing that he or she faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment upon return.851 In this regard, it is not important whether the person is, in fact, homosexual. An asylum seeker can be granted asylum when the authorities of a particular country regard a person to be homosexual and, for this reason, the person risks persecution. Moreover, family members of foreigners with a residence permit have a right to family reunification. The law makes no distinction between same-sex partners and opposite-sex partners and their family members.852 Bias motivated speech or violence on the grounds of sexual orientation is recognized in criminal law. Article 137d of the Criminal Code proclaims that publicly displayed hate or discrimination on the grounds of sexual orientation is punishable.853 Moreover, the Equal Treatment Act prohibits discrimination in employment, discrimination in access to goods and services and discrimination in other spheres of life explicitly on the basis of sexual orientation.854 The Equal Treatment Act does not apply to legal relationships within churches, other religious communities or associations of spiritual nature. Furthermore ‘requirements which, in view of the private character of the employment relationship, may reasonably be imposed on the employment relationship’ are excluded from the Equal Treatment Act.855 However, in June 2013, a bill was entered into force deciding that people who refuse to officiate at same-sex marriage ceremonies will not be appointed as registrars.856 Also, the cabinet has agreed to abolish the law that permits special schools (mostly schools with a religious foundation) to fire a homosexual teacher.857                                                                                                                       Nederlandse Overheid. (2015). Vreemdelingencirculatie 2000. Retrieved from http://wetten.overheid.nl/BWBR0012288/volledig/geldigheidsdatum_19-06-2010#2 852 Lawson, R., Barkhuysen, T., Gerards, J., den Heijer, M., Holtmaat, R., & Koffeman, N. (2008). Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation: Netherlands. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/331-FRA-hdgso-NR_NL.pdf 853 Wetboek online. (2015). Wetboek van Strafrecht, Artikel 137d. Retrieved from http://www.wetboekonline.nl/wet/Sr/137d.html 854 Article 5 Algemene Wet Gelijke Behandeling 855 Lawson, R., Barkhuysen, T., Gerards, J., den Heijer, M., Holtmaat, R., & Koffeman, N. (2008). Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation: Netherlands. Retrieved from http://fra.europa.eu/sites/default/files/fra_uploads/331-FRA-hdgso-NR_NL.pdf 856 Government of the Netherlands. (2015). Equal rights for LGBTs. Retrieved from http://www.government.nl/issues/gay-rights/equal-rights-for-gays-and-transgenders 857 Rijksoverheid. (2015). Enkele feitconstructie verdwijnt uit de wet. Retrieved from http://www.rijksoverheid.nl/nieuws/2015/05/13/enkele-feitconstructie-verdwijnt-uit-de-wet.html 851

 

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The major gap in laws concerning sexual orientation is that the constitution does not explicitly prohibit discrimination on the grounds of sexual orientation.858 Thus, Dutch law includes non-discrimination law. However, the College voor de Rechten van de Mens in 2013 argued that discrimination on personal characteristics such as race and disability does not happen occasionally.859 Especially elderly, pregnant women, women wearing a headscarf, and immigrants are faced with discrimination at work.860 Moreover, Radar861 argues that there were 9,714 registered cases of discrimination in 2014. Most of these cases were on the grounds of „race”.862 244 of these cases of discrimination were on the grounds of sexual orientation.863 The last five years have witnessed a decline in the number of cases on the grounds of sexual orientation.864

2.25.2.2 Recognition of relationships/family protection For a long time, Dutch law emphasized marriage as the basis of family-life. In the present day, however, registered partnership with or without children is also recognized as a family by law.865 Almost all procedures and consequences of marriage do also apply to registered partnership.866

2.25.2.3 Recognition of homosexual relationships For a long time articles 31 and 33 of the Civil Code explicitly referred to the lawful norm and requirement that marriage should be conducted between one man and one woman.867 This

                                                                                                                      ILGA Europe. (2014). Legal summary in details on The Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/legal 859 College voor de Rechten van de Mens. (2015). Jaarverslag 2014. Retrieved from http://www.mensenrechten.nl/publicaties/zoek?categorie[0]=434555 860 College voor de Rechten van de Mens. (2015). Jaarverslag 2014. Retrieved from http://www.mensenrechten.nl/publicaties/zoek?categorie[0]=434555 861 Radar is a television show, made by the public broadcasting corporation, that discusses businesses, institutions, foundations or governments that possibly harm the consumer. Programma-informatie – Over – Radar. Retrieved from: http://radar.avrotros.nl/over/programma-informatie/ 862 Dinsback, W., Silversmith, J., Schaap, E., & Schriemer, R. Kerncijfers 2012-2014: Landelijk overzicht van klachten en meldingen over discriminatie, geregistreerd bij de antidiscriminatievoorzieningen. Retrieved from http://radar.nl/file/2823587/KERNCIJFERS+2012-2014+landelijk+overzicht+discriminatieklachten.pdf 863 Dinsback, W., Silversmith, J., Schaap, E., & Schriemer, R. Kerncijfers 2012-2014: Landelijk overzicht van klachten en meldingen over discriminatie, geregistreerd bij de antidiscriminatievoorzieningen. Retrieved from http://radar.nl/file/2823587/KERNCIJFERS+2012-2014+landelijk+overzicht+discriminatieklachten.pdf 864 Dinsback, W., Silversmith, J., Schaap, E., & Schriemer, R. Kerncijfers 2012-2014: Landelijk overzicht van klachten en meldingen over discriminatie, geregistreerd bij de antidiscriminatievoorzieningen. Retrieved from http://radar.nl/file/2823587/KERNCIJFERS+2012-2014+landelijk+overzicht+discriminatieklachten.pdf 865 https://www.sgp.nl/Media/download/586/Goedgezinde%20politiek 866 Waaldijk, K. (2003).Major legal consequences of marriage, cohabitation and registered partnership for differentsex and same-sex partners in the Netherlands. Retrieved from https://openaccess.leidenuniv.nl/bitstream/handle/1887/12585/More-or-less-together12Netherlands.pdf?sequence=14 867 van Berkum, J.W., Bosma, E.G., de Heer, A., Holdijk, G., Hooglander, H.J. & Wendt, J.A.I. (2006). Goedgezinde politiek: Nederlands gezinsbeleid in Europees perspectief. Gouda: Guido de Brès-Stichting. 858

 

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requirement was dropped in 2000 with the Wet Openstelling Huwelijk.868 This law opened civil marriage to same-sex couples. Since then, Article 30 of the Civil Code, states that a marriage can be contracted by two persons of different sex or of the same sex.869 The principle of equal treatment was fundamental to the legislature’s decision in 2001 to allow partners of the same sex to marry. Under the Same-Sex Marriage Act, same-sex couples have similar rights and obligations to couples of different sexes. The conditions, procedures and consequences of marriage are the same. However, different rules apply to the relationship between couples and their children.870 In the Netherlands, cohabitation and registered partnership with similar rights to marriage is available to both same-sex and opposite-sex couples.871 For a long time, same-sex couples encountered difficulties in seeking legal protection of their right to raise children together. Since 1998 a number of provisions have been introduced in the Dutch Civil Code to protect the legal status of children living with same-sex parents. These provisions in principle make it easier for same-sex couples, both male and female, to raise children in their families.872 After 2001, same-sex couples were able to adopt Dutch children, whether married, registered as partners or only cohabiting.873 In 2004, Minister of Justice Donner promised to allow same-sex couples to adopt foreign children when the country in which the child was born does not preclude such adoptions.874 However, when same-sex couples want biological children, female same-sex couples benefit much more from the contemporary law than male same-sex couples. This is due to the fact that a female couple can give birth to a child within their relationship with the help of a sperm donor, which means that one of the women is the child’s mother by operation of law.875 The woman who gives birth to a child will automatically become the child’s legal mother. Since April 2014, the female partner of the birthmother can become a legal parent without a complex legal adoption procedure. This law makes it possible that lesbian co-mothers, just as heterosexual fathers, can acknowledge legal

                                                                                                                      Nederlandse Overheid. (2015). Wet Openstelling Huwelijk. Retrieved from http://wetten.overheid.nl/BWBR0012099/geldigheidsdatum_02-07-2015 869 Eerste Kamer der Staten-Generaal. Wet openstelling huwelijk. Retrieved from https://www.eerstekamer.nl/wetsvoorstel/26672_wet_openstelling_huwelijk “De Eerste Kamer der StatenGeneraal kan geen verantwoordelijkheid nemen voor de actualiteit en juistheid van geëxtraheerde informatie”. 870Netherlands Ministery of Foreign Affairs. (2010). FAQ Same-sex marriage. Retrieved from http://www.minbuza.nl/binaries/content/assets/minbuza/en/import/en/you_and_the_netherlands/about_the_n etherlands/ethical_issues/qa-homohuwelijk-2011-en---def.pdf 871 ILGA Europe. (2014). Legal summary in details on The Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/legal 872 Vonk, M. (2013). Same-sex parents in the Netherlands. Retrieved from https://machteldvonk.files.wordpress.com/2013/08/same-sex-parents-in-the-netherlands.pdf 873 Waaldijk, K. (2003).Major legal consequences of marriage, cohabitation and registered partnership for differentsex and same-sex partners in the Netherlands. Retrieved from https://openaccess.leidenuniv.nl/bitstream/handle/1887/12585/More-or-less-together12Netherlands.pdf?sequence=14 874 COC. (2004). Gelijkberechting adoptie homoparen stap vooruit. Retrieved from http://www.coc.nl/jouwbelangen/gelijkberechtiging-adoptie-homoparen-stap-vooruit 875 Vonk, M. (2013). Same-sex parents in the Netherlands. Retrieved from https://machteldvonk.files.wordpress.com/2013/08/same-sex-parents-in-the-netherlands.pdf 868

 

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parentage of their children in the city hall.876 The law also makes sure that female same-sex parents have almost the same parental rights as opposite-sex families. For male couples the situation is far more complicated. Because they need a woman to gestate and give birth to a child, and this woman is the childâ&#x20AC;&#x2122;s legal mother by operation of law, neither of the men is a legal parent by operation of law. The transfer of legal parenthood from the birth mother to the men is complex and the outcome is uncertain.877 Moreover, how and whether a man can become the legal father of a child, will also depend of his relationship with the birth mother, but may depend on the existence of a biological connection between him and the child and possibly the way in which the child was conceived.878 Thus, part of the problem for male-same sex families is the strong legal position of the birth mother (whether or not she provided the egg) outside the relationship. It is difficult but not impossible for a male couple to acquire parental status, in particular where they have been open about the whole process from the beginning and have contacted the Child Protection Board before the conception of the child. The outcome of the legal procedures to be followed, however, is never certain beforehand.879 Thus, both same-sex couples can become a legal parent but for male same-sex couples it is a much more complex and longer process than it is for female-sex couples.

2.25.3 National policy In the early 1960s, a substantial proportion of the Dutch population was squarely negative in its attitudes towards homosexuality.880 The 1960s brought great changes to those attitudes. Stimulated by the NVSH (Dutch Society for Sexual Reform) and the COC, as well as by numerous social changes, the Dutch in the 1970s emerged as the most liberal nation in the world on issues of sexual morality.881 The Netherlands has proved itself to be a world leader in regard of acceptance of homosexuality with a population that has the most positive attitudes towards

876 COC. (2012). Tweede Kamer stemt in met wetsvoorstel lesbisch ouderschap. Retrieved from http://www.coc.nl/jouw-belangen/tweede-kamer-stemt-in-met-wetsvoorstel-lesbisch-ouderschap 877 Vonk, M. (2013). Same-sex parents in the Netherlands. Retrieved from https://machteldvonk.files.wordpress.com/2013/08/same-sex-parents-in-the-netherlands.pdf 878 Vonk, M. (2013). Same-sex parents in the Netherlands. Retrieved from https://machteldvonk.files.wordpress.com/2013/08/same-sex-parents-in-the-netherlands.pdf 879 Vonk, M. (2013). Same-sex parents in the Netherlands. Retrieved from https://machteldvonk.files.wordpress.com/2013/08/same-sex-parents-in-the-netherlands.pdf 880 Huijnk, W. (2014). De acceptatie van homoseksualiteit door etnische en religieuze groepen in Nederland. Den Haag: Sociaal en Cultureel Planbureau. 881 Hekma, G. & J. W. Duyvendak (2011). Queer Netherlands: A puzzling example. Sexualities 14 (6), pp. 625-631

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homosexuality.882 The extreme negative utterances about LGBs, for example that they should be eliminated from society, have received no support since the 1980s.883 The COC is the main national Non-Governmental Organization that has been working on the topic of homosexual’s rights in the Netherlands. It has been advocating the rights of lesbian women, gay men, bisexuals and transgenders (LGBT’s) since 1946.884 Throughout the years COC have actively fought for the decriminalization of sexual orientation and gender identity and for equal rights, emancipation and social acceptance of LGBT’s in the Netherlands and all over the world.885 COC tries to increase awareness and acceptation within the society regarding rights of homosexuals by being visible in society in a positive matter and by education programs in schools.886 The COC has achieved a lot throughout the years. For instance, in response to a request from COC Netherlands, the Minister for Security and Justice increased by 100% the sentence requirement for crimes with homo-/transphobic motivation.887 In November 2011, after intense advocacy by COC Netherlands, the Minister of Education, Culture and Science agreed to require Dutch schools to provide education about sexual and gender diversity in society.888 Also in November 2011, following public action by COC Netherlands, the Lower House of Parliament passed a resolution requiring the government to end the exception for registrars to be allowed not to marry same-sex couples.889 After COC Netherlands successfully pressed for a paragraph on LGBT emancipation in the government agreement of 2010, the annual budget for this area was increased by about 40%, from €3.5 million to €5.5 million in 2011.890 Finally, COC Netherlands has long been pressing for equal parenting rights for nonbiological mothers in lesbian relationships, which has become a reality in April 2014.891 With the help of COC Netherlands and other organizations, the legal position of homosexuals and same-sex couples in the Netherlands has greatly improved in recent decades. Despite these                                                                                                                       882 Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 883 Huijnk, W. (2014). De acceptatie van homoseksualiteit door etnische en religieuze groepen in Nederland. Den Haag: Sociaal en Cultureel Planbureau. 884 COC. (2015). About COC. Retrieved from http://www.coc.nl/engels 885 COC. (2015). About COC. Retrieved from http://www.coc.nl/engels 886 COC Amsterdam. (2015). Belangenbehartiging. Retrieved from https://www.cocamsterdam.nl/wat-wedoen/belangenbehartiging/ 887 ILGA Europe. (2011). ILGA-Europe annual review 2011 on the Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/ilga_europe_annual_review_2011_on_the_ netherlands 888 ILGA Europe. (2011). ILGA-Europe annual review 2011 on the Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/ilga_europe_annual_review_2011_on_the_ netherlands 889 ILGA Europe. (2011). ILGA-Europe annual review 2011 on the Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/ilga_europe_annual_review_2011_on_the_ netherlands 890 ILGA Europe. (2011). ILGA-Europe annual review 2011 on the Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/ilga_europe_annual_review_2011_on_the_ netherlands 891 ILGA Europe. (2011). ILGA-Europe annual review 2011 on the Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/ilga_europe_annual_review_2011_on_the_ netherlands

 

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improvements in their legal rights, LGBTs still face inequalities.892 The Dutch government wishes to increase the acceptance of lesbians, gays, bisexuals and transgenders (LGBT’s). The national equality action plan contains measures tackling discrimination on the grounds of sexual orientation.893 To monitor trends in this regard, the Netherlands Institute for Social Research (SCP) produces regular reports at the request of the government.894 The government seeks to end discrimination and violence against LGBTs by increasing their willingness to make a criminal complaint of violence. They do so through improving public education; improving the registration of anti-LGBT discrimination; increasing the penalties for violence aggravated by discrimination; improving the safety and psychological resilience of vulnerable groups, such as LGBT teenagers who want to come out.895 The government supports several initiatives to enhance the social acceptance of lesbian women, gay men, bisexuals and transgenders (LGBTs). For instance, the government is supporting GayStraight Alliances that are active in education; among older people; in sports; and in neighbourhoods, aimed at enhancing the social acceptance of LGBTs and making Dutch society a safer place for them.896 Moreover, the government seeks to change the culture of silence surrounding homosexuality and improve social acceptance among ethnic minorities and conservative religious communities in the Netherlands.897 The government seeks to involve the family members of LGBTs with a non-Western or conservative religious background in the dialogue supporting LGBT’s in this situation, in order to boost social acceptance within these migrant communities.898 Homosexuality is widely accepted in the Netherlands and non-governmental organizations and the government are still working to enhance equality even further. Despite the fact that the Dutch population can be classified as one of the most gay-tolerant nations in the world, there are still some groups within Dutch society who reject homosexuality.899+900 There are a few political parties in the Netherlands that are against certain rights for the LGBT community. The SGP901, Government of the Netherlands. (2015). Equal rights for LGBTs. Retrieved from http://www.government.nl/issues/gay-rights/equal-rights-for-gays-and-transgenders 893 ILGA Europe. (2014). Legal summary in details on The Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/legal 894 Keuzenkamp, S. (2011). Acceptance of homosexuality in the Netherlands 2011: International comparison, trends and current situation. The Hague: The Netherlands Institute for Social Research. 895 Government of the Netherlands. (2015). Combating anti-LGBT discrimination and violence retrieved from http://www.government.nl/issues/gay-rights/combating-anti-lgbt-discrimination-and-violence 896 Government of the Netherlands. (2015). Social acceptance of LGBTs. Retrieved from http://www.government.nl/issues/gay-rights/social-acceptance-of-lgbts 897 Government of the Netherlands. (2015). Social acceptance of LGBTs. Retrieved from http://www.government.nl/issues/gay-rights/social-acceptance-of-lgbts 898 Government of the Netherlands. (2015). Social acceptance of LGBTs. Retrieved from http://www.government.nl/issues/gay-rights/social-acceptance-of-lgbts 899 Keuzenkamp, S. (2011). Acceptance of homosexuality in the Netherlands 2011: International comparison, trends and current situation. The Hague: The Netherlands Institute for Social Research. 900 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research. 901 The Reformed Political Party (Dutch: Staatkundig Gereformeerde Partij, SGP) is an orthodox Protestant Calvinist political party in the Netherlands. 892

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for example, argues that same-sex marriage opposes the fundamental basis of marriage.902 For them, marriage is an exclusive commitment between one man and one woman. For this reason, they wish to abolish same-sex marriage immediately.903 They also argue that homosexual practice cannot be accepted based on the Bible and the Christian faith.904 However, they do not reject the homosexual person. The party argues that violence against homosexuals is absolutely reprehensible.905 For the ChristenUnie906, marriage is also an exclusive commitment between one man and one woman.907 However, they argue that discrimination on the basis of sexual orientation should be contested actively. Their primary focus on the emancipation of homosexuals is the so-called “respect for differences”, in which they start a dialogue about homosexuality within their own community.908 Within society, roughly 92% of the population approves homosexuality.909 However, 35% find it offensive if two men kiss in public and 24% feel the same about two women kissing in public.910 Some people consider any form of kissing in public unacceptable, but the resistance is much lower for straight couples than for same-sex couples.911 Moreover, 12% of the Dutch population argues that they could not be friends with a homosexual, from which 7% say that they would not feel comfortable around them because of their sexuality.912 Finally, a study conducted in 2013 shows that 20% of the Dutch population rejects the idea of equal adoption rights for same-sex and opposite-sex couples.913 Statistics from 2015 show that roughly 8% of the Dutch population disapprove homosexuality in general.914 This disapproval is predominantly based on religion, ethical background, and age.915                                                                                                                       SGP. (2015). Homoseksualiteit en homohuwelijk. Retrieved from https://www.sgp.nl/Standpunten/Standpunten?letter=H&standid=103 903 SGP. (2015). Homoseksualiteit en homohuwelijk. Retrieved from https://www.sgp.nl/Standpunten/Standpunten?letter=H&standid=103 904 SGP. (2015). Homoseksualiteit en homohuwelijk. Retrieved from https://www.sgp.nl/Standpunten/Standpunten?letter=H&standid=103 905 SGP. (2015). Homoseksualiteit en homohuwelijk. Retrieved from https://www.sgp.nl/Standpunten/Standpunten?letter=H&standid=103 906 The Christian Union (Dutch: ChristenUnie), abbreviated to CU, is a Christian democratic political party in the Netherlands. 907 ChristenUnie. (2015). Huwelijk. Retrieved from http://www.christenunie.nl/nl/standpunten/jeugd-engezin#faqItem2650 908 ChristenUnie. (2015). Huwelijk. Retrieved from http://www.christenunie.nl/nl/standpunten/jeugd-engezin#faqItem2650 909 Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 910 Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 911 Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 912 Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 913 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 914 Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 902

 

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Fewer than half of the members of the Protestant Church in the Netherlands think it is acceptable for their child to have a partner of the same sex or that gay couples should have the same rights as straight couples to adopt children. A majority of the ‘other’ orthodox Protestants and members of the evangelical groups say they think homosexuality is wrong; a minority endorse the notion of equal rights to marriage or adoption and a quarter could accept their child being gay.916 Dutch Roman Catholics are predominantly positive in their attitudes to homosexuality. A large majority endorses notions such as equal rights for gays and accepts homosexuality within their own family.917 Approval of homosexuality is low among Muslims.918 The majority of Muslims think that LGBs should not be allowed to live their lives as they wish. Three-quarters say they would consider it a problem if their child had a steady partner of the same sex.919 Migrants of Moroccan, and especially Turkish origin are generally not positive in their attitudes towards homosexuality.920 Half of those of Turkish and Moroccan origin say explicitly that homosexuality is wrong; a majority rejects the idea of gay marriage and threequarters would consider it a problem if their child were homosexual.921 A large majority of people of Surinamese and Antillean origin say that LGBs should be allowed to live their lives as they wish and support gay marriage. Roughly one in three say they would have difficulty if their child were homosexual.922 Little is known about the views of other non-Western groups in the Netherlands on homosexuality. General acceptance appears to be high especially among those of Iranian origin, who are relatively secular and well educated. People of Iraqi, Afghan and Somali origin, all groups with an Islamic background, also believe more often than their Turkish and Moroccan counterparts that LGBs should be able to live their lives as they wish. Roughly twothirds of those of Chinese origin also endorse this view.923 Even though acceptance towards homosexuality is already high in the Netherlands, acceptance is still increasing924925. This increase is especially appearing among people with low education, religious people, people between the age of 16 and 24, and the elderly.926                                                                                                                                                                                                                                                                                                                                                                                 Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 916 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 917 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 918 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 919 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 920 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 921 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 922 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 923 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 924 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 915

 

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2.25.4 Summary The Dutch Constitution includes a non-discrimination clause in Article 1 which states that all persons in the Netherlands shall be treated equally in equal circumstances. Discrimination, based on sexual orientation and other personal characteristics, is punishable by law. Same-sex couples are, just as opposite-sex couples, entitled to: marriage; registered partnership; cohabitation; joint adoption; second parent adoption; and fertility treatment.927 With these legal rights, the Netherlands is one of the leading countries towards equality for same-sex couples.928

Kuyper, L. (2015). Wel trouwen, niet zoenen. De houding van de Nederlandse bevolking tegenover lesbische, homoseksuele, biseksuele en transgender personen. Den Haag: Sociaal en Cultureel Planbureau. 926 Keuzenkamp, S., & Kuyper, L. Acceptance of lesbian, gay, bisexual and transgender individuals in the Netherlands 2013. The Hague: The Netherlands Institute for Social Research 927 ILGA Europe. (2011). ILGA-Europe annual review 2011 on the Netherlands. Retrieved from http://www.ilgaeurope.org/home/guide_europe/country_by_country/the_netherlands/ilga_europe_annual_review_2011_on_the_ netherlands 928 Keuzenkamp, S. (2011). Acceptance of homosexuality in the Netherlands 2011: International comparison, trends and current situation. The Hague: The Netherlands Institute for Social Research. 925

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2.26 United Kingdom Witten by Alexia-Nefeli Douma929

2.26.1 An overview of the legal Background in England and Wales Common law used to dictate for the ab initio voidness of same-sex marriages defined as "Marriage (as understood in Christendom) is the voluntary union for life of one man and one woman, to the exclusion of all others” (Hyde v. Hyde judgment, 1682).930 In recent years, the aforementioned prohibition was extended in cases of post-operative transsexuals, as well. In Talbot (otherwise Poyntz) v. Talbot Justice Ormerod stated that "Marriage is a relationship which depends on sex, not on gender".931 A few years after this verdict, the Nullity of Marriage Act, explicitly banning marriages between homosexual couples was passed in England and Wales. The latter act ignited discussions on the legal status of transsexualism but not homosexuality.932 It was later on succeeded by the Matrimonial Causes Act 1973933 which fully replaced it. The latest act clarified that a marriage is void if the parties are not respectively male and female, otherwise a legal impediment occurs, an element also included in the marriage legislation of Scotland and Northern Ireland.934 The Marriage Act (Scotland) 1977 and the Marriage Order (Northern Ireland) 2003 both state there is a legal impediment to marriage if the parties are of the same sex. When it comes to the United Kingdom, same-sex marriage is allowed by law, except for the part of Northern Ireland, but it is still perceived differently in each state. Regarding England and Wales, the English Parliament passed a law permitting homosexual marriages in July 2013 (enforced in March 2014).935 As far as civil partnerships are concerned, the so-called Civil Partnership Act was adopted back in 2004 and came into effect in December 2005, providing for same-sex couples with the same rights and responsibilities of marriage.936 Since 2013, partners are able to convert their partnership into marriage.

Alexia-Nefeli Douma is a graduate LLB Law student at the Aristotle University of Thessaloniki Hyde v. Hyde, [L.R] IP & D 130. 931 Brent G., “Some legal problems of the post-operative transsexual”, Journal of Family Law, 12:405. 932 Commission Reports Ireland, “Marriages between persons of the same sex: Report on the nullity of marriage”, Law Reform Commission Reports, October 1984, pp.4-8. 933 Matrimonial Causes Act 1973, available atwww.legislation.gov.uk, Section 11 (c). 934 Creten S., “Family Law in the Twentieth Century: A history”, OUP, pp.70,71. 935 “Same-sex weddings to begin in March”, BBC News UK, 10 December 2013. 936 Rosenberg J, “All embracing Partnership Act”, The Daily Telegraph (London), 6 October 2005. 929 930

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A famous case adjudicated in 2006 decided upon this utterly controversial issue; Wilkinson v. Kitzinger937 related to the refusal by the British state to recognize a marriage between two women concluded in British Columbia, Canada. It was rather converted into a civil partnership. The applicants deemed the above as an unjustifiable act of discriminatory treatment towards their right to equality, to freedom of expression in conjunction with their right to found a family. The High Court ruled that their union would not be granted marriage status and would continue to be recognised in England and Wales as a civil partnership, since “marriage in England is a traditional institution that is conducted between people of the opposite sex; nevertheless, samesex couples are in no way inferior vis-à-vis heterosexual ones as to the rights they enjoy”938. Wilkinson and Kitzinger were deeply traumatised by the aforementioned judgment, not only themselves, but in the name of the entire LGBT community. They stated that the judgment "won't stand the test of time" and that they looked forward to the day when "there is full equality in marriage”.939 Finally, despite of their public statement regarding their intention to appeal, they abandoned it due to lack of funds.

2.26.1.1 Debate 2.26.1.1.1

Campaign groups

The Equal Marriage Campaign was initiated by the Equality Network in 2008, and works in collaboration with various organisations across Scotland campaigning for the same aims.940 It receives wide support from people and politicians within the country. On 4 February 2014, the Marriage and Civil Partnership (Scotland) Bill was adopted by the Scottish Parliament, with 105 votes in favour and 18 votes against. The bill received royal assent on 12 March 2014, and is now the Marriage and Civil Partnership (Scotland) Act 2014. It came into effect on 16 December 2014. The Equal Marriage campaign continues to address the Scottish Government so as to lift the discriminatory bans on same-sex marriage as well as mixed-sex civil partnership in Scotland. The prior has been fulfilled, yet not the latter. The scope of the campaign is to achieve a legislative shift towards the authorization of same-sex marriage, the ban on discriminatory provisions as well as the abolishment of the requirement that transgender people must end their marriage or civil partnership before obtaining Gender Recognition.                                                                                                                       Wilkinson v. Kitzinger & Ors [2006] EWHC 2022 (Fam) (31 July 2006), par. 122. Murphy M., “British lesbians lose: Bid to validate their marriage”, Bloomberg, 31 July 2006. 939 “UK stance on gay marriage”, Liberty, 11 August 2005. 940 Available at www.equality-network.org/our-work/policyandcampaign/equal-marriage/. 937 938

 

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2.26.1.1.2

Political parties

The Conservative party has proven to be quite reluctant as to such a legislative innovation. Members of the party have undergone severe political and social criticism for their statement “to consider the case” without revealing any specific political plan. "Contract for Equalities" issued by the party declared it would consider recognising civil partnerships as marriage if elected.941 As far as the Labour party is concerned, it worked as the driving force in the launching and adoption of a resolution committing the party to support LGBT equality rights passed for the first time due to block voting support from the National Union of Mineworkers. Gordon Brown had stated back in April 2010 that the issue was a "developing area" requiring lots of elbow grease in fostering marriage rights for same-sex couples, as same-sex marriage was inextricably interwoven with dilemmas of religious freedom. During the 2010 Labour leadership election campaign, each of the Labour candidates expressed their support for reform to lead to the recognition of same-sex marriage.942 The words of the British Liberal Democrats party leader depicted great reluctance over this sensitive issue. He had declared that the society was not mature enough so as to extent the institution of marriage to same-sex couples, as well.943 When it comes to Scotland, the respective party had already passed a 2010 motion inviting the Scottish Parliament to allow for same-sex marriages. The Green Party clearly deplores the ban on same-sex civil marriage and is committed to its repeal. Furthermore, it is a fervent supporter of civil marriage equality, based on the perception that a same sex couple should enjoy exactly the same right to marry at a registry office as an heterosexual one.944 They concede that both civil marriage and civil partnerships should be accessible to all couples, which should never undergo discriminatory treatment. For a large part of people that feel spiritually connected to a particular denomination, marriage is closely interrelated to religion. The largest Christian denominations have been entirely opposed to the same-sex marriage legalisation. he Catholic Church in England and Wales has been a fervent rival vis-à-vis governmental suggestions as to the shift in marriage policies.945 Alike is the situation in Scotland946; the Church of England endorses that people sign petitions impeding the governmental plans. Although the Methodist Church of Great Britain had affirmed the participation of gays and lesbians in a union in the past, it underlines the inappropriateness in the usage of the word "marriage" with regards to same-sex unions. As far as the Muslim Church of                                                                                                                       941 “George Osborne says Tories will consider gay marriage”, BBC News, 11 April 2010; Beckford M., “Gay couples could be allowed to marry under Tory election plans”, The Telegraph, London, 4 May 2010. 942The Labour Party, “The Government should go further than they currently plan on same-sex marriage cooperation”, 15 March 2012. 943 Taylor J. & Grice A., “Clegg lays down to Cameron on gay rights”, The Independent, London, 23 October 2011. 944 “Green Party calls for EU-wide gay marriage”, Pink News, 22 May 2009. 945 “Church of England Warning on Gay marriage”, BBC News, 12 June 2012. 946 “Scotland: Catholic Church declares war on gay marriage, available at www.pinknews.co.uk, 8 July 2012.

 

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Britain is concerned, it had launched a campaign against the legalisation of same-sex marriages. A similar stance vis-à-vis the issue was maintained on behalf of the Jewish Synagogue- as such a marriage would contravene Jewish law. Notwithstanding the above, the first religious group that recognized same-sex marriages rendering them equal to heterosexual ones were the Quakers, who significantly contributed to gaining the right to register in the name of homosexual people.947 Surveys that had been conducted about a decade ago demonstrated that more than half of the British population agreed upon the recognition of same-sex marriages, whereas 65% of the voters stood in favour of same-sex civil unions.948 In the years that followed, other polls proved an uprise concerning the recognition of same-sex marriages, which amounted to a new social trend. The aforementioned percentages increased in 2009 and the same worked out for Scotland where more than 60% of the Scottish voters welcomed marriage between homosexuals.949 In a poll conducted in 2012, approximately 62% believed that homosexual relationships were of equal value as heterosexual ones, whilst approx. 37% of people applauded the stance of the Church of England to defend traditional marriage.950 The latest poll conducted by BBC in March 2014 concluded that 68% of the voters agreed upon the authorization of same-sex marriage; 26% opposed it. Women were more positive towards supporting same-sex marriages (75%) compared with 61% of male voters in favour.951 David Cameron had personally intervened in favour of legalising same-sex partnerships as civil unions. In March 2012, the British Government launched its five-pillar consultation plan on equal civil marriage in England and Wales focusing on enabling same-sex couples in conducting a civil marriage in a register office or approved premises, the stabilization of religious marriages rituals, the retaining of civil partnerships for same-sex couples and the authorization of couples already in a civil partnership to convert the latter into marriage.952 The aforementioned attempt was highly welcomed by the Green Party of England and Wales along with other parties, such as the Liberal Democrats, the Labour Party as well as the press, namely The Times, The Guardian and The Independent. On the opposing side stood political parties, mainly, the Democratic Unionist Party, the British National Party, as well as the UK Independence Party, backed up by local Christian organizations.                                                                                                                       947 “Quakers, Liberal Judaism and Unitarians welcome equal marriage consultation”, Quakers in Britain, 15 March 2012; “Quakers to allow gay marriages”, BBC News, 30 July 2007. 948 Mazzuca J., “Gay Rights: US more conservative than Britain and Canada”, Galm Publications, 12 October 2004. 949 “Scotland: 61 per cent of Scots support gay marriage”, You Gov, March 2012. 950 “Church of England warns on gay marriage”, BBC News, 12 June 2012. 951 Pigott R., “Gay weddings: Fifth of Britons would turn down invitation”, BBC News available at www.bbc.com, 28 March 2014. 952 Faiola A., “British Conservatives lead change for gay marriage”, The Washington Post, 25 February 2011.

 

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The Marriage (Same Sex Couples) Act 2013, was passed in July 2013, whilst the first same-sex marriages took place in late March 2014. The prior renders same-sex marriage lawful in England and Wales, while protecting and promoting religious freedom. The Government concedes that rendering marriage accessible to all couples demonstrates society’s respect for all individuals, regardless of their sexuality. The Marriage Act assists in enabling same-sex couples to marry in civil ceremonies, while guaranteeing an “opt-in” choice of those religious organisations with regards to same-sex marriage and protecting them from legal challenges when they do not wish to marry heterosexual couples.953 Furthermore, civil partners are eligible to convert their partnership into marriage. Another measure of utter significance is the opportunity provided to every person to change their legal gender without having to end their marriage. The Act attempts to strike a fair balance between the right to marry acquired by homosexuals, on the one hand, and the right to religious freedom provided to religious organisations as to the performance of religious rituals and ceremonies, on the other.954 Article 9 of the European Convention on Human Rights establishes the right to freedom of thought, conscience and religion.

2.26.1.2 What the change to the law means in practice Despite the fact that the aforementioned Act was wholeheartedly welcomed by the largest portion of the British society, there are still some societal groups that have expressed strong concerns about the “repercussions” equal marriage could bear in practice. The extension of the conventional rules to same-sex couples did not lead the British legislature to abolish terms such as ‘husband’ and ‘wife’, which continue to be used and included in legal and official documents. ‘Husband’ indicates a male marriage partner, whereas ’wife’ connotes a female one.

2.26.1.3 The Church of England and the Church in Wales The Act does not provide the Church of England and the Church in Wales with preferential treatment, considering the particular circumstances of both Churches. It rather guarantees that they are treated the same way as any other religious body/organisation, through a respect of their special legal position. The Church of England as well as the Church of Wales have officially stated that they currently will not conduct same-sex marriage ceremonies according to their rites. The latter statement has been fully respected by the Government. In order for the Anglican Church to conduct same-sex marriages, it would be obliged to amend the Canon law as well as the Book of Common prayer. Thus, it would need to bring forward the 953 954

“Same-sex marriage set to enter law later this week”, BBC News, 16 July 2013. “Equal marriage: The Government’s response”, HM Government, 11 December 2012.

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issue before the Synod for approval. As far as the Church of Wales is concerned, the Marriage Act sets out as a prerequisite a procedure for its Governing Body to address the Lord Chancellor in order for him to enable appropriate legislation.

2.26.1.4 Risk of challenge in the European Court of Human Rights A significant dictum has been crystallized through the ECtHR jurisprudence; the European Convention on Human Rights does not impose an obligation on States to grant same-sex couples access to marriage.955 This view has been fostered by eminent human rights lawyers. As on any other issue, teachers are granted the explicit right to express their own beliefs based on their own faith on the matter as long as the latter are externalized in an appropriate and balanced way. Teachers deal sensitively and professionally with a variety of issues touching on religious tenets in the classroom, such as divorce, and contraception, and there is no reason to think they will act differently when teaching about marriage, now that it has been extended to same-sex couples. With regards to education lessons at schools, teachers should combine the instruction of the factual with the legal position of marriage in England and Wales, but they are not allowed to exceed this margin, through promoting or/and endorsing views that contravene their own beliefs. Parents have the right to withdraw their children from sex and relationship education lessons that they do not deem as appropriate/moral, on the condition that the latter do not constitute indispensable part of the national curriculum programme of study for science (biology subjects, etc.). Teachers in faith schools are entitled to express their own beliefs in a balanced way and expected to act according to the tenets of the religion of the school. As for all teachers, they shall teach lessons within the context of a schoolâ&#x20AC;&#x2122;s overall plans, curriculum and schemes of work.

2.26.2 An overview of the legal Background in Scotland Lesbian, gay, bisexual, transgender (LGBT) rights in Scotland abide by the rest of legislative provisions in the United Kingdom. In Scotland, there were no statutes rendering sex between men unlawful between 1424 and 1707, though homosexual acts were punishable. The United Kingdom Parliament voted to pass the Sexual Offences Act 1967 for delimitating criminalisation of homosexual acts but solely in England and Wales. Homosexual activities were legalised in Scotland through Section 80 of the Criminal Justice (Scotland) Act 1980. The "Ethical Standards in Public Life etc. (Scotland) Act 2000" was adopted so as to repeal the legislation that prevented the promotion of homosexuality.

955

Hamalainen v. Finland, App.No. 37359/09 ECtHR, 16 July 2014, par. 38.

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With regards to same-sex activity, the latter has been legalized since 1980, whereas the provision for age of consent to such activity was established in 2001. In mid-2012, the Scottish Government announced it would ignite reform procedure with regards to legalization of both civil and religious same-sex marriage in Scotland, placing emphasis on the autonomy of the clergy and religious groups to conduct wedding ceremonies. The Scottish Parliament approved of same-sex marriage in February 2014. The bill was fast-tracked so as to receive Royal Assent by March 2014. Eventually, it was approved by HM The Queen as the “Marriage and Civil Partnership (Scotland) Act 2014” in March of that same year. It came into effect in midDecember 2014, whilst the first same-sex marriage ceremonies occurred two weeks after the entry into force. As far as civil partnerships are concerned, they have been legalised since 2005, in conjunction with the granting of joint and step adoption in 2009. 2005 was a landmark year for the eradication of any form of discrimination on the basis of sexual orientation and gender identity. In 2015, the United Kingdom was awarded the title of the “most progressive state in Europe for LGBTI legal equality".956

2.26.3 Recognition of same-sex relationships 2.26.3.1 Same-sex marriage As previously stated, same-sex marriage is legal in Scotland. Scottish law underscores the lack of obligation for religious organizations and individual celebrants to perform marriage ceremonies for same-sex couples, though religious organizations are authorized to permit their clergy to do so. When the Scottish Government announced that it would legalise same-sex marriage (mid July 2012), it found itself before strong opposition on behalf of the Church and the Catholic Church of Scotland. Although Deputy First Minister Nicola Sturgeon had considered this move appropriate, she preserved a reluctant stance, reassuring churches about their right not to perform same-sex marriages. On 27 June 2013, the Scottish Government introduced the Marriage and Civil Partnerships Bill (Scotland) in the Scottish Parliament.

2.26.3.2 Civil partnerships The Civil Partnership Act 2004 provides same-sex couples with most (but not all) of the rights and responsibilities of civil marriage. Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security, tenancy rights, full life insurance and pension benefits, in combination with the ability to get parental responsibility for a partner's children and others. Parallel to the aforementioned there is a formal process for dissolving partnerships similar to divorce.

                                                                                                                      956

 

“Scotland named best country in Europe for LGBTI legal equality”, STV News. 10 May 2015.

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The legalisation of same-sex marriage in Scotland has born several negative repercussions on legislation relating to Scottish civil partnerships957. In that direction, the Scottish Government has elected to introduce religious and belief ceremonies so as to register civil partnerships, along with the establishment of “tests” for religious bodies to assemble in cases of marriage solemnisation or registration of civil partnerships958.

2.26.3.3 Discrimination protections The passage of the Equality Act 2010 by the Parliament of the United Kingdom had a direct impact on Scotland. The prior regulates inter alia cases of gender reassignment, marriage and civil partnership, sex, and sexual orientation, whilst outlawing discrimination, harassment and victimisation of another individual that belongs or is thought to belong or is associated to a group protected by the Act, is through those groups or are associated with someone who does.

2.26.3.4 Situation in Northern Ireland The institution of marriage is still unrecognised in Northern Ireland despite the social activisation regarding the fostering of rights within the LGBT community. These “unions” are nevertheless- recognised as civil partnerships. According to polls in late 2014 people of Northern Ireland were truly divided.959 The question of the legalization of marriage between homosexuals unarguably constitutes a bone of contention, since 49.5% opposed it. Local LGBT rights pursue a positive majority within the Assembly of Northern Ireland and have publicly declared their desire to stand before national tribunals so as to argue their case.960 Moreover, there was a revoting some months after, where Sinn Féin stood as a sponsor of a new policy plan to introduce same-sex marriages in the state. The recent Irish referendum that proved a real shift vis-à-vis LGBT equalization of rights has ignited fervent political and public dialogue in that same direction. The first two couples that have entered into a civil partnership in the UK have been granted the right to challenge the same-sex marriage ban in Northern Ireland (Belfast) subjected to judicial review. The review will be held in November 2015, alongside several other legal challenges taken by gay couples in the region, and who are backed by the Rainbow Project, an LGBT rights organisation.

                                                                                                                      957 “Marriage and Civil Partnership (Scotland) Bill - statement on the Equality Act 2010”, Scottish Government. 26 June 2013. 958 “Scotland's same-sex marriage bill is passed”, available at “http://www.bbc.com/news/uk-scotland-scotlandpolitics-25960225”, 4 February 2014. 959 Mc Bride S., “Asssembly members vote to block gay marriage”, Belfast Newsletter, available at “www.newsletter.co.uk”, 6 January 2014. 960 “Gay marriage now has overwhelming support in Northern Ireland”, 6 July 2015.; “Northern Ireland MLA's vote 'yes' for gay marriage - but motion is torpedoed by DUP”, The Belfast Telegraph, 2 November 2015.

 

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The Court has acknowledged that the applicant has an arguable case, which has been backed by the Rainbow Project and Amnesty International that were present before the Court.961 Amnesty International said the ban has turned Northern Ireland into a “discriminatory backwater for the gay and lesbian community”. An applicant stated that the legalization of same-sex marriage in Northern Ireland is not a religious question but rather a human rights dilemma. Any party is eligible to veto legislation on the grounds that it can argue the law would not have sufficient cross-community or Protestant/Catholic support. At the same time, 20,000 trade unionists begun a rally in Belfast city centre in an attempt to support gay marriage in Northern Ireland962, the only part of the UK where LGBT couples are not guaranteed the right to marry and the support is now augmenting.963

2.26.4 Conclusion Based on the aforementioned analysis, the need for legislative review in terms of equal enjoyment of rights has become manifestly clear within this traditional common law state. The necessity to effectively extend the protective ambit of the current provisions so as to address every citizen regardless of their sexual orientation constitutes the cornerstone and a sine qua non prerequisite of a modern democratic society. This notion has already been transplanted into the political conscience of Northern Ireland, which still stands -up to a certain degree- sceptical visà-vis a potential legislative shift through the implementation of a “breakthrough” approach. Noone can predict whether Northern Ireland will also opt for the latter. Yet, one thing is most certain: “Today is tomorrow’s yesterday”.

                                                                                                                      961McDonald,

H., “Northern Ireland under pressure after Irish gay marriage referendum win”, The Guardian, 25 May 2015. 962 “Thousands attend same-sex marriage rally in Belfast”, 13 June 2015. 963 Cromie C., “Gay marriage now has overwhelming support in Northern Ireland”, Belfast Telegraph, 6 July 2015.

 

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3. Overview of international case law

 

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Written by Karlijn De Heijde, Erik Kamenjašević, Rogier Plokker, Christina Zoumpouli964

3.1

Introduction

The European Court of Human Rights (hereafter: ECtHR or, the Court) judges upon alleged breaches of the European Convention on Human Rights (hereafter: ECHR or, the Convention). The convention contains a list of the rights and guarantees which the Member States have undertaken to respect.965 Anyone affected by the actions of a signatory state may apply to the ECtHR after they have exhausted all domestic remedies.966 The aim of this chapter is to make an overview of the most interesting cases that have been decided by the ECtHR and discover the role of the Court in the field. This chapter will cover case law on three different topics. First case law on the right to civil marriage and/or registered partnership will be discussed. The second topic is the case law on rights of transsexuals. Finally some case law on discrimination based on sexual orientation will be discussed.

3.2

Right to civil marriage and/or registered partnership for same-sex couples

3.2.1 Introduction The following cases show the view of the ECtHR relating to right to civil marriage and/or registered partnership for same-sex couples. The Court discussed whether same-sex couples have the right to marry under Article 12 ECHR. In addition, the Court considered whether same-sex couples rights should be protected under Article 8 ECHR which contains the right to respect for private and family life. In addition, a case of the Human Rights Committee of the United Nations is analysed.

3.2.2 Application no. 30141/04, Schalk and Kopf v. Austria, ECtHR (2010) The applicants, a same-sex couple living in Vienna, were denied marriage because marriage could only be concluded between two persons of opposite sex on the basis of Article 44 of the Civil Code.967 Their appeal was dismissed on the ground that the concept of marriage, as being geared 964 Karlijn De  Heijde  is  an  undergraduate  student  (LLB  Law  and  LLB  Tax  law)  at  the  University  of  Amsterdam.  Erik     Kamenjašević  is  a  postgraduate student  (LLM  International  Business  Law)  at  the  Vrije  University.  Rogier  Plokker  is  an   undergraduate  student  (LLB  Law)  at  the  University  of  Amsterdam.  Christina  Zoumpouli  is  a  postgraduate  student  (LLM   International  and  European  Law:  Public  International  Law)  at  the  University  of  Amsterdam   965 European Court of Human Rights | Questions and Answers. Document retrieved fom http://www.echr.coe.int/Documents/Questions_Answers_ENG.pdf 966 Article 35 European Convention on Human Rights (Rome, 4 November 1950) 967 Civil Code, Austria, Article 44: “The marriage contract shall form the basis for family relationships. Under the marriage contract two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other”

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to the fundamental possibility of parenthood, should not be extended to relationships that do not fall under the traditional meaning of marriage. After all national legal remedies had been exhausted, the couple appealed to the ECtHR. In the first place, the issue is whether the applicants had been discriminated on, on the basis of Article 12 ECHR because they were denied the possibility to marry or to have their relationship otherwise recognized by law. The article provides for the fundamental right of a man and woman to marry and to found a family. The state may not limit the right to the extent that such restriction impairs the essence of such right. In regard of Article 9 ECHR, the Court acknowledged that there is no obstacle to recognize same-sex relationships in the context of marriage but there is no explicit requirement that domestic law should allow such marriage to persons of the same sex. Such recognition is strongly influenced dependent on the deep-rooted social and cultural circumstances of each Contracting State. The Court did not find a violation of Article 12 since the government was not obliged to grant same-sex couples access to marriage. Secondly it was asked whether not providing for same-sex marriage is discriminatory under Article 14 in conjunction with Article 8 ECHR. In its judgment, the Court considered that samesex relationships indisputably fall within the meaning of the private life and family life under the Article 8 paragraph 1. According to Article 14, difference in treatment is discriminatory if it has no objective and reasonable justification of proportionality between the means employed and the aim sought to be realized which is limited by the right given to the State to determine whether and to what extent differences in similar situations justify a difference in treatment. The applicants argued that the State should provide an alternative means of legal recognition of their partnership. The Court answered that since there was not yet a majority of the Contracting States providing such recognition, states should have the timing of such recognition at their own discretion. The introduction of the Registered Partnership Act in Austria, was satisfactory in regard to the trend within the Member States. Even so, the differences existing between the rights given under the Act for the same-sex partnerships and under Civil Code for the married couples also corresponded to the aforementioned trend. Finally, the Court concluded that Article 14 in conjunction with Article 8 ECHR did not impose an obligation on the Member States to grant same-sex couples the right to marry. Therefore there had been no violation of Article 14 in conjunction with Article 8 of the Convention.

3.2.3 Application no. 25951/07, Gas and Dubois v. France, ECtHR (2012) Ms Valérie Gas lived together with Ms Nathalie Dubois since 1989. Dubois gave birth to a child in Belgium. The child didn’t have an established parental tie with the father, in accordance with Belgian law. When the applicants entered a civil partnership some years later, Ms Gas wished to adopt the child by means of simple-adoption. The public prosecutor refused this on the basis of Article 365 of the French Civil Code.968 Under this Article, second parent adoption only is                                                                                                                       968 Application no. 25951/07, Gas and Dubois v. France, ECtHR (2012), para. 8, 16

 

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allowed for couples that are legally married, which was prohibited for same-sex couples in France at that time. The applicants argued in front of the ECtHR that they had been subject to discriminatory treatment based on their sexual orientation, which breached their right to respect of private and family life. They relied on Article 14 of the Convention taken in conjunction with Article 8. The applicants complained that the refusal of the application to adopt, deprived the child’s mother of parental responsibility. They could not take advantage of the rights included in Article 365 of the Civil Code. The applicants argued that they were not seeking access to marriage but alleged that since their situation was relevantly similar to that of married couples, they had been subjected to a discriminatory difference in treatment. The Court argued that Article 8 did not guarantee a right to adoption or to the creation of a legal tie between an adult and a child who lived in the same family. Since the Convention did not cover a right to adopt, discrimination could not be claimed. In other words: Article 14 did not have independent existence.969 Although Article 8 does not guarantee a right to found a family or a right to adopt, family life is guaranteed. Sexual orientation falls within the personal sphere protected by Article 8. In the Court’s view, the applicants are not victims of discriminatory treatment arising out of the French legislation. Marriage confers a special status on those who enter it. The applicants’ legal situation could not be compared to that of a married couple for the purposes of second-parent adoption. The Court examined whether their situation could be compared with any couple in a comparable legal situation by virtue of having entered into a civil partnership would likewise have their application for simple-adoption order refused. The Court concluded that it did not observe any difference in treatment based on the applicants’ sexual orientation, and therefore the applicants had not been subject to discriminatory treatment. In view of the background and purpose of Article 365 of the Civil Code, the difference in treatment could be justified on the basis of a challenge to the application of that provision, for authorising the creation of a dual legal 970parent-child relationship with. The Court concluded that there had been no violation of Article 14 taken in conjunction with Article 8 ECHR.

3.2.4 Application no. 37359/09, Hämäläinen v. Finland, ECtHR (2014) Ms. Hämäläinen was born in 1963 as a male. In 1996 she lawfully married a woman and had a child. In 2006 she started living as a woman and a few years later she underwent gender reassignment surgery. However, Ms. Hämäläinen's new gender could only be fully recognized if she transformed her marriage into a registered partnership. Only then her identity number could be changed so her passport didn’t identify her as male anymore.

                                                                                                                      969 Application no. 25951/07, Gas and Dubois v. France, ECtHR (2012), para. 35 970 Application no. 25951/07, Gas and Dubois v. France, ECtHR (2012), para. 72

 

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Ms. Hämäläinen claimed that by forcing her to either divorce or transform her marriage into a registered partnership, Finland had violated Article 8 of the Convention, according to which everyone had the right to respect for private and family life.971 Leaving the marriage untouched would imply same-sex marriage. In addition, the Court considered a violation of Article 12 and 14 of the Convention. In regard to Article 8 of the Convention, the Court noted that it did not only hold the protection of individual's rights but also could impose a positive obligation to make sure the rights are protected. In previous cases that dealt with gender reassignment the Court afforded a certain margin of appreciation to the Member States. However they were obliged to recognize the gender reassignment of post-operative transsexuals. According to the Court there is no obligation on Contracting States to grant same-sex couples the right to marry.972 Furthermore, the regulation of the effects of gender reassignment in the context of marriage falls to a large extent within the margin of appreciation of the Contracting State.973 There is a suitable option for same-sex couples in Finland that hold almost all the same rights and obligations, namely a civil partnership. It is not disproportionate to require this conversion as a condition to obtain legal recognition of the acquired gender. The Court also noted that the issue in this case is subject to constant development and will therefore examine the issue according to the present situation. Following the current development there is no European consensus on allowing same-sex marriage, nor any consensus as to how to deal with gender recognition in the case of pre-existing marriage. Therefore the Court considered that the margin of appreciation of the respondent State remained wide974. The Court concluded that Ms Hämäläinen was able to continue enjoying the same legal protection under a registered partnership as afforded by marriage.975 The intention of the Transsexuals (Confirmation of Gender) Act976 is to maintain the original legal relationship with only minor changes and a change of the title. The intention of Article 8 is to protect family life, whether it is a same-sex relationship or a heterosexual one.977 Therefore it did not matter, whether the relationship was a marriage or registered partnership. Article 8 also extends to the relationship with Ms Hämäläinen's child, as she had legally been appointed as parent. The Court noted that the conversion of marriage into a registered partnership would not have any effect of the appointment as parent as on her parental responsibilities. In conclusion, the Court considered the possibility of changing the marriage into a registered partnership or the possibility of a divorce as a sufficient option. Therefore the Court concluded that there had been no violation of Article 8 of the Convention.                                                                                                                       971 972 973 974 975 976 977

 

Article 8 European Convention on Human Rights (Rome, 4 November 1950) Application no. 30141/04, Schalk and Kopf v. Austria, ECtHR (2010), para. 101 Application no. 28957/95, Christine Goodwin v. The United Kingdom, ECtHR (2002), para. 103 Application no. 21830/93, X, Y and Z v. The United Kingdom, ECtHR (1997), para. 44 Application no. 30141/04, Schalk and Kopf v. Austria, ECtHR (2010), para. 109 Legal Recognition of the Gender of Transsexuals 2002 Application no. 30141/04, Schalk and Kopf v. Austria, ECtHR (2010), para. 91, 94

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In addition the Court considered a violation of Article 12 of the Convention, which implied that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”.978 According to the Court Article 12 cannot be interpreted as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.979 This case deals with the consequences of Ms Hämäläinen's gender re-assignment for her existing marriage. Therefore the Court concludes that this issue had already been examined under Article 8 and it showed no violation. Article 14 of the Convention implies that “The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground”980 This article should be considered in conjunction with Article 8 and 12 of the Convention. According to Ms Hämäläinen she received less protection in comparison with bisexuals and heterosexual marriages. The Court notes that differences based on gender or sexual orientation require exceptionally serious reasons by way of justification, additionally the Court usually allows a wide margin of appreciation to the State when it comes to general measures of economic or social strategy for example. The Court concludes that there had been no violation of Article 14 taken in conjunction with Articles 8 and 12 of the Convention.

3.2.5 Communication No. 902/1999, Ms. Juliet Joslin et Al. V. New Zealand, Human Rights Committee (2002) In Ms. Juliet Joslin et al. v New Zealand, Communication two lesbian couples were in a relationship. The first couple, Ms Jolin and Ms Roan jointly assumed responsibility for their children out of previous marriages. They applied under the Marriage Act 1955 for a marriage licence. The second couple also shared responsibility for the children of a previous marriage. The local Registry Office refused to accept a notice of intended marriage. After that, the authors claimed to be victims of a violation by New Zealand of Articles 16 and 17, in conjunction with other articles. The failure of the Marriage Act to provide for homosexual marriage discriminates against them directly on the basis of sex and indirectly on the basis of sexual orientation. The State stated that the authors did not exhaust domestic remedies. The State rejected the authors' arguments that the Covenant requires States parties to enable homosexual couples to marry, noting that such an approach would require redefinition of a legal institution protected and defined by the Covenant itself, and of an institution reflective of the social and cultural values in the State which are consistent with the Covenant. The Committee could not find that by mere refusal to provide for marriage between homosexual couples the State party had violated the rights of the authors. There had not been a violation in this case.                                                                                                                       978 979 980

 

Article 12 European Convention on Human Rights (Rome, 4 November 1950). Application no. 30141/04, Schalk and Kopf v. Austria, ECtHR (2010), para 63 Article 14 European Convention on Human Rights (Rome, 4 November 1950)

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3.2.6 Application no. 49151/07, Muñoz Diaz v Spain, ECtHR (2009) In Muñoz Diaz v Spain, the applicant and M.D were both members of the Roma community. Their marriage was solemnised in accordance with Roma customs and cultural traditions and was recognised by their community. After the death of the man, applicant applied for survivor’s pension. Even though he had been working and paying social security contributions for many years, applicant could not receive the pension because she was not recognized as wife of the man. According to the government, Roma marriage could not have civil effect. The applicant complained that the refusal to grant her a survivor’s pension, on the ground that a Roma marriage had no civil effects, infringed the principle of non-discrimination recognised by Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.981 The government argued that the applicant possessed the same right to a legal marriage as anyone who did not belong to the Roma community. The Court could not accept the argument that it would have been sufficient for the applicant to enter into a civil marriage in order to obtain the pension. The prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant’s personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands. The Court observes, however, that this is a distinction derived from religious affiliation, which is not pertinent in the case of the Roma community. But that distinction does not impede or prohibit civil marriage, which is open to the Roma under the same conditions of equality as to persons not belonging to their community, and is a response to considerations that have to be taken into account by the legislature within its margin of appreciation, as the Government have argued. Accordingly, the Court finds that the fact that Roma marriage had no civil effects does not constitute discrimination prohibited by Article 14. It follows that this complaint is manifestly ill-founded.982

3.2.7 Conclusion The above mentioned cases show that the Court still leaves the Member States a wide margin of appreciation when it comes to granting the right to marry to same-sex couples. The Court noted that there is a constant development and every issue should be examined according to the present situation but for now there is no overall European consensus. Article 12 of the Convention doesn't hold a right to marry for same-sex couples, but Member States have to give same-sex couples a reasonable alternative to have their relationship legally recognized. Although same-sex couples are granted the same right of respect for private and family as everybody else, this does not mean that all Member States have to ensure these rights in a similar way.

                                                                                                                      981 982

 

Article 1 of Protocol No. 1, European Convention on Human Rights (Rome, 4 November 1950) Application no. 49151/07, Muñoz Diaz v Spain, ECtHR (2009), para. 69-81

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3.3

Rights of transsexuals

3.3.1 Introduction In the following cases, the ECtHR discussed whether Member States are obliged, under the Article 8 of the ECHR, to recognize the transsexual persons their changed sex on all of the official documents. Furthermore, the ECtHR discussed whether, under the Article 12 of the ECHR, transsexual persons should be recognized the right to marry a person of the opposite sex.

3.3.2 Application no. 9532/81, Rees v. The United Kingdom, ECtHR (1986) Mr Rees undertook medical treatment to change his sex into male. After successful change of name in his passport and adding of the prefix “Mr”, change of gender on his birth certificate was denied. Under the law of the United Kingdom, a birth certificate is a record of facts at the time of a birth. It reveals historical facts and not current identity since intends to provide accurate and authenticated evidence of the past events and to enable the establishment of the family's connections related to succession, legitimate descent and distribution of property. Later amendments of the birth certificates would only be allowed if an error occurred when the birth was registered or within twelve months from that date. If such amendment was concerning person’s sex, the practice of the Registrar General is to use only biological criteria, i.e. chromosomal, gonadal and genital sex. After exhaustion of national remedies, Mr Rees appeals to the ECtHR. The applicant argued that his right to respect for private and family life983 as well as his right to marry984 were violated by the legislation of the United Kingdom since the birth certificate and the sex stated there becomes relevant when the person would want to contract a (valid) marriage. The Court acknowledged that several Member States had given transsexuals the option to change their personal status after complying with certain conditions. However, it should be taken into account that Member States still enjoy a wide margin of appreciation when regulating this issue because the law is in a transitional period. Member States need to find fair balance between the general interest of the community and that of individuals. Positive obligations under the Article 8 cannot be extended in so far to include changes of sex in birth certificates. Accordingly, the Court ruled that there was no violation of the Article 8 of the Convention. Secondly, the applicant complained that his inability to marry a woman violated Article 12 of the Convention. The Court took the traditional approach and interpreted marriage as allowed only between persons of the opposite biological sex. Further exercise of such right must be subject to                                                                                                                       983 Article 984

 

8 European Convention on Human Rights (Rome, 4 November 1950) Article 12 European Convention on Human Rights (Rome, 4 November 1950)

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national legislation of the Member State and must not restrict or reduce the right in a way that very essence of the right is impaired. The Court took the approach that the legal impediment in the United Kingdom on the marriage of the persons who are not of the opposite biological sex cannot be said to have an effect of this kind. Accordingly, the Court did not find violation of the Article 12 of the Convention985.

3.3.3 Application no. 21830/93, X, Y and Z v. The United Kingdom, ECtHR (1997) Mr X, a female to male transsexual, had been living in a permanent and stable relationship with Ms Y. Soon after Ms Y had given birth to Z, he was conceived by means of artificial insemination, Mr X requested the Registrar General to be registered as the father. Mr X was refused because only biological men could be recognized as a father for the purpose of the registration under English law. Contrary, under the Human Fertility and Embryology Act, when an unmarried woman gives birth through the artificial insemination procedure, her male partner should be treated, for legal purposes, as the father of the child. The child was allowed to have the surname of X. After X and Y requested the national court to put X’s surname in the birth certificate in a space for the father, the order was issued but in favour of two cohabiting lesbian woman in respect of the child of one of them. The applicants complained that the lack of legal recognition of the relationship between X and Z amounted to the violation of their right to family life986 and pointed out that the child's sense of security within the family was undermined, the absence of the X's name on the birth certificate caused distress in those cases when a certificate had to be produced, child could not be recognized as a “dependent” under foreign law in a case of migration and Z was not allowed to inherit from X directly. In his judgment, the Court acknowledged that the meaning of the family life is not restricted only to the families based on marriage and includes also de facto relationships. It further stated that there was no common European standard with regard to granting of parental rights to transsexuals because the law appeared to still be in transitional stage and the Member States should enjoy a wide margin of appreciation. Finally, the Court stated that the best interest of a child has to be placed at the forefront when dealing with matters including those issues. The Member State still may however stay cautious in making decisions about changing its national law. The Court concluded that Article 8 of the Convention987 cannot be interpreted to impose an obligation on the Member State to formally recognize someone who is not the biological father                                                                                                                       The same approach the Court took few years later also in the case Cossey v. United Kingdom (1990), ECtHR no. 10843/84. 986 Article 8 European Convention on Human Rights (Rome, 4 November 1950) 987 Ibid., Article 8 985

 

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as a legal father of a child and consequently, there was no violation of Article 8 nor of Article 14 of the Convention988.

3.3.4 Application no. 31 1332/1997/815 13816/1018 131019, Sheffield and Horsham v. The United Kingdom, ECtHR (1998) Miss Sheffield and Miss Horsham are British nationals who underwent sex-reassignment surgery and treatment from male to female. They wished to change their names on official documents and managed to do so for their driving license and passport, but they were not able to change their name in their birth certificate. Miss Sheffield claimed that the refusal of the respondent state to formally recognize her status as a female, pursuant to the gender reassignment, violated Articles 8, 12 and 14 of the Convention and Article 13 due to lack of effective remedy.989 Similarly, Miss Horsham complained that the UK had refused to legally recognize her as a woman following gender reassignment surgery thereby violating Articles 3, 8, 12, 13 and 14 of the Convention. The Court proceeded to examine whether the respondent State had failed to take positive steps to alter the legal system which allegedly operated to the applicants’ prejudice.990 It noted that the notion of “respect” varies from case to case and it referred the cases of Rees991 and Cossey992. Finally, the Court repeated that UK was not under any obligation to modify its system of birth registration.993 From a legal standpoint, the Court was not convinced about the existence of a common European approach to the problems arising from the legal recognition of postoperative sex status.994 Nevertheless, the Court held that the area of transsexualism should be continuously reviewed by Member States, since an increased social acceptance could be observed and particularly regarding the problems that post-operative transgender people face.995 However, it was established that there had been no violation of the Article 8 of the Convention. Furthermore, the Court stated that Article 12 of the Convention referred to traditional marriage between persons of the opposite sex and its purpose is to protect marriage as the foundation of family.996 Limitations regarding the exercise of the right by national law must not impair the essence of it. Finally, the Court concluded that the inability of the applicants to contract a valid marriage under UK law did not amount to a violation of Article 12 of the Convention.997                                                                                                                       Ibid., Article 14 Application no. 31 1332/1997/815 13816/1018 131019, Sheffield and Horsham v. The United Kingdom, ECtHR (1998), para 36. 990 Ibid, para 51 991 Application no. 9532/81, Rees v. The United Kingdom, ECtHR (1986) 992Application no. 10843/84,Cossey v. United Kingdom, ECtHR (1990) 993 Ibid, para 53. 994 Ibid, para 57. 995 Ibid, para 60. 996 Ibid, para 66. 997 Ibid, para 68. 988 989

 

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To establish a violation of Article 14, it had to be demonstrated that other persons in a similar situation enjoyed preferential treatment and that this treatment was unjustifiable, taking into account the state’s margin of appreciation.998 The Court held that a fair balance between the interests of transgender people and the interests of the community in general had to be achieved. Instances whereby the applicants were forced to reveal their original gender did not occur frequently enough in order to establish a disproportionate interference with the right to respect for private lives.999 Consequently, no violation of Article 14 in conjunction with Article 8 was found.

3.3.5 Application no. 28957/95, Christine Goodwin v. The United Kingdom, ECtHR (2002) Ms Goodwin was a male to female transsexual who, during her life, encountered multiple negative consequences from changing her gender. For example, she claimed to be sexually harassed by colleagues and she had to pay the higher insurance fee which is applicable to men. The issue in this case is whether the United Kingdom had failed to comply with the positive obligation to ensure the right to respect of private life and consequently violated Article 8 of the Convention. The Court noticed an on-going international trend of increased social acceptance of transsexuals and legal recognition of the new gender. It concluded that “the Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention”1000. Finally, the Court recognized the failure to respect the right to private life of the Article 8 of the Convention, since there was no sufficient public interest against obtaining legal recognition of gender re-assignment. Ms Goodwin further argued the violation of the Article 12 of the Convention since it excludes persons from contracting a valid marriage who do not fulfil the biological criteria1001 and secondly, that the definition of a person's sex for the purpose of marriage, defined in Corbett v. Corbett1002, was no longer adequate (as also shown in Bellinger v. Bellinger)1003. Here the Court stated that determination of gender by biological criteria is not appropriate anymore, since there have been important social changes. The Court found there had been a violation of the right to marry, since a post-operative transsexual woman could not marry a man. The Court further stated that there is a limited space for the margin of appreciation left for the Member States. In the end, “the Court finds no justification in barring transsexuals from enjoying the right to marry under any circumstances”1004.                                                                                                                       Ibid, para 75. Ibid, para 76. 1000 Application no. 28957/95, Christine Goodwin v. The United Kingdom, ECtHR (2002), para. 93 1001 Application no. 9532/81, Rees v. The United Kingdom, ECtHR (1986) 1002 Corbett v Corbett (1971), High Court, Probate Reports 83. 1003 Bellinger v. Bellinger (2001), Supreme Court of Judicature Court of Appeal, EWCA Civ 1140. 1004 Goodwin v. The United Kingdom (2002), ECtHR 28957/95 §103. 998 999

 

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3.3.6 Conclusion From the cases discussed above, it can be concluded that the ECtHR followed the changing climate regarding transsexual persons within the Member States. It took step by step approach and it has slowly recognized that under the notions of the right to respect for family and private life also fall the right of transsexual persons to state their changed sex on the all official documents. Furthermore, the Court rejected the traditional approach of defining a marriage as reserved only to persons of the opposite sex, as well the biological criteria for determination of person’s sex. Finally, ECtHR stated that there is no obstacle for the Member State to recognize the right of the transsexual person to marry a person of the opposite sex.

3.4

Discrimination based on sexual orientation

The following cases demonstrate the view of the ECtHR regarding discrimination on the basis of sexual orientation. The cases refer to the relation between parental responsibility and sexual orientation discrimination. Do both partners, in a same-sex relationship, have the right to be legal parents? Are unmarried different-sex cohabitants and unmarried same-sex cohabitants to be treated equally in all circumstances? The ECtHR considers the scope of the right to respect for private and family life, protected under Article 8 of the Convention and applies this article in conjunction with Article 14, which contains a prohibition of discrimination. A recent case from the Inter-American Court of Human Rights will also be discussed.

3.4.1 Application no. 33290/96, Salgueiro Da Silva Mouta v. Portugal, ECtHR (1999) Applicant is a Portuguese national. He married a woman with whom he had a daughter. When they separated, applicant went to live with a man. When the divorce decree was officially issued three years later, the applicant and his former wife signed an agreement that assigned the mother with parental responsibility and granted the applicant a right to contact. Notwithstanding the terms of the agreement, the applicant was refused to see his daughter by his former wife. After exhausting national remedies to attest this practice, applicant lodged an appeal against Portugal at the European Commission of Human Rights under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms by virtue of the foregoing events. The applicant underlined that the Court of Appeal erred in awarding parental responsibility to the mother of the child taking into account his sexual orientation, which equalled to an unjustifiable interference with his right to respect for his family life.1005 The Portuguese Government argued that states enjoyed a wide margin of appreciation regarding the attainment of the legitimate aims laid down in paragraph 2 of Article 8 of the Convention insofar as parental responsibility was concerned.1006                                                                                                                       1005

Ibid, para 24.    Ibid, para 25.  

1006

 

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The Court noticed that, in taking an adverse look on the matter, the Portuguese Court of Appeal had introduced a new factor when deciding upon the request of applicant to be awarded with parental responsibility, namely that the applicant was a homosexual and he was living with another man.1007 This led the Court to believe that the difference of treatment was rooted in the sexual orientation of the applicant which is a right protected by Article 14. The Court of Appeal pursued a legitimate aim, namely the protection of the health and rights of the child, albeit the factor of the father’s homosexuality was a decisive factor for its final judgment.1008 Finally, the Court ruled that the Court of Appeal made a distinction based on the applicant’s sexual orientation, therefore a reasonable connection of proportionality between the means employed and the aim pursued could not be identified.1009 The Court concluded that there had been a violation of Article 8 of the Convention taken in conjunction with Article 14.

3.4.2 Application no. 40016/98, Karner v. Austria, ECtHR (2003) A man was living in a rented apartment in Vienna for five years with his partner with whom he had a homosexual relationship. After his partner died, the man wanted to continue the tenancy agreement with the landlord as his heir, which was granted to “life companions” under the Rent Act.1010 The landlord wished to end the tenancy agreement nonetheless but his action was dismissed by the courts of first and second instance. The national courts found that section 14(3) of the Rent Act gives protection to persons living together for a long time without being married against sudden homelessness, regardless of their sexual orientation. However, the Supreme Court granted the appeal of the landlord and terminated the lease by stating that the notion of “life companion” under section 14(3) of the Rent Act had to be interpreted traditionally. The man started a procedure at the ECtHR. When he died, his mother continued the procedure claiming her right to succeed the estate. She claimed there was discrimination based on grounds of sexual orientation in the decision of the Supreme Court of Austria because her son was denied the status of the “life companion” within the meaning of section 14(3) of the Rent Act due to his sexual orientation. Furthermore, she claimed the violation of the Article 14 of the Convention in conjunction with Article 8. The ECtHR stated that, under Article 14 of the Convention, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized.1011 For the different treatment to be justified, very weighty reasons have to be presented. The protection of the traditional notion of the family may be reason enough but the principle of the proportionality has to be respected. This principle Ibid, para 28. Ibid, para 35. 1009 Ibid, para 36. 1010 Section 14 (3), Rent Act, Austria. 1011 Application no. 20458/92, Petrovic v. Austria, ECtHR (1998) 1007 1008

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requires that the measure is in principle suited for realizing the aim sought and is shown as necessary in order to achieve that aim. Since there were no arguments presented to support justification of such discrimination, a violation of the Article 14 of the Convention in conjunction with the Article 8 was established by the Court. Under Article 41 of the Convention, the Court ordered the Contracting State to pay five thousand euros to the injured party.

3.4.3 Application no. 35159/09, P.V. v. Spain, ECtHR (2010) Applicant is a Spanish male-to-female transsexual. Prior to prior to her gender reassignment she had a son with a woman who she was married with at the time. When they divorced, applicant and her former wife made an amicable agreement which awarded the mother with custody of the child and gave parental responsibility to both parents jointly. Two years later, the mother wanted to suspend the parental responsibility and the contact arrangements of the father of the child – the applicant – because he had shown a lack of interest in the child. The national court decided to restrict the contact arrangements because of emotional instability of the father. The gender reassignment procedure entailed far-reaching changes to all aspects of her life and personality. Pursuant to judicial proceedings, the Constitutional Court held that the ground for restricting the contact arrangements had thus not been P.V.’s transsexualism but her lack of emotional stability. The lower courts had taken into account the child’s best interests and weighed these against the interests of the parents. They did not weigh them against P.V.’s status as a transsexual. P.V. contested the decision before the ECtHR on the basis of Article 8 (right to respect for private and family life) taken in conjunction with Article 14 (prohibition of discrimination). The applicant complained about the restrictions ordered by the judge on the arrangements for contact with her son. The lack of emotional stability following her gender reassignment was likely to upset the child, who was six years old at the time. The Court laid down that, once they had learned of P.V.’s gender emotional instability, the Spanish courts adopted contact arrangements that were less favorable to her than those laid down in the separation agreement. Transsexualism is a ground for discrimination covered by Article 14. The Court held there had been no violation of Article 8 taken in conjunction with Article 14. The restriction of the contact arrangement had not resulted from discrimination on the ground of the applicant’s transsexualism. The overriding factor in that decision had been the child’s best interests and not the P.V.’s transsexualism. The goal of the restricted contract agreement was to let the child gradually become accustomed to his father’s gender reassignment.1012                                                                                                                       1012

 

Application no. 35159/09, P.V. v. Spain, ECtHR (2010)

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3.4.4 Atala Riffo and Daughters v. Chile, IACtHR (2012) Ms Atala was married to Ricardo Jaime López Allendes and they had three daughters together. When they divorced, they agreed that Ms. Atala would maintain the care and custody of their three daughters and that the daughters would visit their father weekly. Ms Atala was in a relationship with another woman, who started living in the same house as Ms. Atala and her children. Before the Inter-American Court of Human Rights ruling Mr. Lopéz argued that both the physical and emotional development of his daughters was at risk, when they would continue to live with their mother. Living with a lesbian couple would be harmful for the development of the daughters. Mr. López Allendes also filed a suit for provisional custody to obtain custody of the daughters prior to the conclusion of the custody proceeding. The Acting Judge of the Juvenile Court rejected the father’s claim.1013 The Court argued that sexual orientation was not an obstruction to being a responsible parent, therefore the custody remained with the mother. However, the Supreme Court of Justice granted permanent custody to the father. The Courts argued that Article 24 of the American Convention protects the right to “equal protection before the law” and prohibits discrimination. The law should be interpreted in the current situation because the law is evolving. Restriction of a right that is granted to all persons on the basis of someone’s sexual orientation, would violate Article 1(1) of the Convention. The Court found that the Supreme Court of Chile based its decision on a limited, stereotyped perception of family, which has no basis in the Convention. That Ms. Atala lived with her female partner would not have a negative effect on the daughters’ best interest. The Supreme Court of Chile used abstract, stereotyped, and/or discriminating arguments to justify the decision and violated the right to equality of Article 24, in conjunction with Article 1(1) of the American Convention. The Inter-American Court further examined whether the rulings of the domestic courts constitute discriminatory treatment against Ms Atala and her daughters. The prohibition of discrimination must be interpreted in regard with Article 2 of the Convention on the Rights of the Child. The daughters experienced the effects of the discrimination against their mother. Therefore, the Court concludes that Article 24, in conjunction with Articles 19 and 1(1) of the American Convention, was violated. The Court also based its decision on the right to private life and the right to family life, enshrined from Article 11 of the American Convention1014. The custody decision was not in the best interest of the daughters, which also resulted in separation of the family. The Court concludes                                                                                                                       1013

Atala Riffo and Daughters v. Chile, IACtHR (2012), para 44. 11 American Convention

1014 Article

 

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that the custody decision meant an interference with the right to private and family life. Therefore, the right to private life and the right to family life has been violated.

3.4.5 Application no. 8017/11, Sabine Boeckel and Anja Gessner-Boeckel v. Germany, ECtHR (2013) Ms. Boeckel and Ms. Gessner-Boeckel lived together and registered a civil partnership in 2001. Ms. Gessner-Boeckel gave birth to a son and Ms. Boeckel adopted the child. Applicants requested to rectify the birth certificate by adding Ms. Boeckel's name as the second parent. Up till this moment, the father’s name was left blanc. 1592 § 1 of the Civil Code states that the father was the man who was married to the mother of the child at the time of birth. According to the applicants, this should be read as the second mother in case of a registered civil partnership. The Hamburg District Court declared the request unfounded, since the birth certificate was neither incorrect nor incomplete. Furthermore, it was argued that it was biologically impossible for the child to descent from Ms. Boeckel. The legislator had already been considerate of the rights of civil partners by creating the possibility of adoption. Consequently, the Court of Appeal rejected the appeal solely on biological grounds. Ms. Boeckel and Ms. Gessner-Boeckel complained to the ECtHR under Article 8 on its own and in conjunction with Article 14 of the Convention. They argued that the refusal of domestic authorities to insert Ms. Boeckels name to the birth certificate amounted to discrimination against in the enjoyment of their family life on account of gender. The Court noted that the relationship of same-sex couples falls within the notion of “family life”1015 and that in order for an issue to arise under Article 14 there must be a difference in treatment of persons in relevantly similar situations. This difference is discriminating if it cannot be justified by a reasonable relationship of proportionality between the means employed and the aim sought to be realised. States enjoy a certain margin of appreciation to whether difference in otherwise similar cases justify a difference in treatment1016. A State also enjoys a certain margin of appreciation in regard to the exact status provided to registered civil partnerships. Finally, the Court ruled that Article 14 in conjunction with Article 8 did not oblige the Contracting State to grant same-sex couples equal rights as married couples in respect of secondpartner adoption because of the special status of the act of marriage. The court concluded it cannot be said that the applicants were in a relevantly similar situation as a married heterosexual couple in respect of the entries made into the birth certificate at the time of birth, since two females could not both be biological parents of a child. Article 14 in conjunction with Article 8 had not been violated and the Court declared the application inadmissible.

                                                                                                                      1015 1016

 

Application no. 19010/07, X and Others v. Austria, ECtHR (2013), para. 104 Application no. 19010/07, X and Others v. Austria, ECtHR (2013), para. 98

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3.4.6 Application nos. 29381/09 and 32684/09, Vallianatos and Others v. Greece, ECtHR (2013) On 26 November 2008, the Greek government passed Law no 3719/2008 that made a novel provision for an official form of partnership other than marriage, known as civil unions.1017 The case at hand comprises two applications that, by virtue of similarity in terms of the facts and the substantive issues raised, the Court decided to merge and examine jointly.1018 The applicants in the first application were two men that lived together as a couple in Athens. The second application was submitted by three same-sex couples and a non-profit association which provides psychological and moral support to gays and lesbians. The applicants’ core allegation was that the “civil unions” introduced by the Law at issue were formulated for couples composed by different-sex adults and, in light of Articles 8 in conjunction with Article 14 of the Convention, encroached their right to respect for their private and family life and resulted in unjustified discrimination between different-sex and same-sex couples.1019 The applicants further stressed that a trend towards legal recognition of same- sex couples was observed in European countries’ legislation and that Greece was the only country that introduced a legal alternative to marriage which was limited to different-sex couples.1020 The Court examined whether Article 14 taken in conjunction with Article 8 of the Convention was applicable in this case. The principle that Article 14 cannot be applied autonomously, but only in relation with other rights (here the right to private life) was reiterated and the Court concluded that the applicants’ relationships fall within the notion of private life and that of family life, similarly to a different-sex relationship.1021 The Court confined the complaint to the fact that Law 3719/2008 introduces a distinction with discriminatory impact against the applicants. Consequently, that leads to the matter under consideration, namely whether the state was entitled, in view of Articles 8 and 14, to enforce a law introducing a new registered partnership scheme for unmarried couples, excluding same-sex couples.1022 Previous ECtHR cases set the criteria regarding the application of Article 14. It is critical that a difference in the treatment of persons in comparable situations is identified. Furthermore, this difference in treatment is not justified if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the objective pursued.1023 The Court categorically stated that differences based on sexual orientation demand “particularly convincing and weighty reasons” so as to justify difference in treatment and

                                                                                                                      Application nos. 29381/09 and 32684/09, Vallianatos and Others v. Greece, ECtHR (2013) para. 9 Ibid, para 35 1019 Ibid, para 3 1020 Ibid, para 60 1021 Ibid, para 73 1022 Ibid, para 75 1023 Ibid, para 76 1017 1018

 

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declared that differences based merely on considerations of sexual orientation were unacceptable under the Convention.1024 The Court found that by tacitly excluding same-sex couples from its purview, Law 3719/2008 introduced a difference in treatment on the basis of sexual orientation.1025 In addition, same-sex couples, being equally able to maintain a stable relationship as heterosexual couples, have the same needs in terms of mutual support and assistance and the extension of civil unions to samesex couples would allow them to regulate property, maintenance and inheritance matters by way of an officially recognized relationship.1026 The Court illustrated that, in view of the fact that the Convention should be interpreted in light of social developments and, especially, accepting that there not just one way or one choice on how one is leading his or her family or private life, the state must prove that the measure adopted is also necessary (as required by the principle of proportionality) in order to achieve the aim pursued. In such cases, where there is a difference of treatment based on sex or sexual orientation the margin of appreciation is narrow.1027 The Court pointed out that the legislation at issue was mainly designed to afford legal recognition to a form of partnership other than marriage and focus on the living arrangements of couples who have entered a civil union.1028 Although there is no consensus among Member States of the Council of Europe regarding the way same-sex partnerships are legally treated, the Court highlighted that there is a trend regarding the introduction of forms of legal recognition of same-sex relationship.1029 For the above reasons, the Court decided that the exclusion of same-sex couples from the scope of Law 3719/2008 is not justified and, therefore, concluded that there had been a violation of Article 14 of the Convention in conjunction with Article 8.1030

3.4.7 Conclusion The above cases in principle appertain to the issue of discrimination by virtue of sexual orientation. In order to assess this legal matter, the European Court of Human Rights applied the following methodology: in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in comparable situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification.1031 It can be seen, that although the Court in early decisions seriously considered the margin of appreciation recognized to Contracting States, in recent cases more strict prerequisites (“particularly convincing and weighty                                                                                                                       Ibid, para 77 Ibid, para 79 1026 Ibid, para 81 1027 Ibid, para 85 1028 Ibid, para 86 1029 Ibid, para 91 1030 Ibid, para 92 1031Application nos. 29381/09 and 32684/09, Vallianatos and Others v. Greece, ECtHR (2013), para 76 1024 1025

 

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reasons”) have been introduced to justify difference in treatment, while declaring that considerations of sexual orientation are unacceptable under the Convention. In parallel, the Inter-American Court of Human Rights, in a revolutionary interpretation of the American Convention of Human Rights, stipulated that sexual orientation and gender identity are protected by the Convention and found violations of the prohibition of discrimination, the right to equality, the right to private life and the right to family life. What is noteworthy is that the Court rejected the stereotyped approach of “traditional family”, which is superseded by the families of all individuals, creating progressive jurisprudence, compatible with contemporary social developments.

 

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4. Conclusion

 

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The legal status of same-sex couples is nowadays subject to a very dynamic procedure in many European Union member states. During the course of our research, there were many legal and practical developments which forced us to update the chapters multiple times. A general trend towards acceptation of same-sex relationships can be discerned in all member states. In many of them there are numerous NGO’s, fighting for the rights of the LGBT community and for improving the respective legal framework. Countries like Malta and the Netherlands are in the lead, when it comes to acknowledging samesex couples and homosexuals the same rights as different-sex couples and heterosexuals. In many cases the process towards that objective has been a struggle of gradual acceptance. In some member states the main controversy was about the expansion of child adoption for same-sex couples, rather than recognizing the right to marriage for same-sex couples. Such a situation could be remarked in France as well as in other countries. However, not all member states aim to open up marriage for same-sex couples. In some of them marriage is still considered to be ‘sacred’ and, consequently, can only be concluded between a man and a woman. As a result, they prefer to reserve the institution of marriage for ‘traditional couples’ and introduce another option for them, with similar consequences (registered partnership). In Hungary, the constitution even explicitly requires that the institution of marriage is protected as the union of a man and a woman. Also in Latvia same-sex marriage is prohibited by the country’s constitution. Nevertheless, as political debate regarding same-sex couples’ rights is on-going, efforts are made to diminish the existing inequality towards this part of the population. In Germany the only way for same-sex couples to formalise their relationship is by means of registered partnership, an institution which is only available for them. It is particularly interesting to read about the development in member states that have recently introduced legislation on the status of same-sex couples. Progress has been made even in countries like Germany and Romania, where homosexual activity by definition was a criminal offence until the twentieth century. As far as religious countries are concerned, such legislation is introduced in a slower pace. Furthermore, it is found that in decentralized states, such as Spain and Austria, the adoption of legislation on the topic is more time-consuming. When neither the national nor the local lawmaker has exclusive power to regulate on anti-discrimination, the laws have to be enacted at both levels in order to provide full coverage. From the perspective of the case law of the European Court for Human Rights it can be found that the court leaves the Member States a wide margin of appreciation, which means that the aforementioned framework is contingent on each member state’s discretion, and thus there is no consensus at the European level yet. As a result, although same-sex couples are granted the same right of respect for private issues and family as everybody else under article 8 of the Convention, this does not mean that all Member States have to ensure these rights in a similar way. Nevertheless, , with its recent “Oliari and Others v. Italy verdict, the ECtHR took some steps forward with its reasoning, in comparison to similar cases of “Shalk and Kopf v. Austria” and “Vallianatos and others v. Greece”, by recognizing for the first time a positive obligation of States to regulate same-sex relationships. This case could be considered as a turning point for the case law of the Court and also the initial point for a comprehensive approach of the issue under the light of the ECHR which will result in changes to the approach at the European Union level as well.

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Mul t i l at er al L egal Res ear chGr oup

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Multilateral Legal Research Group on the Legal Status of Same-Sex Couples in the EU.  

The final report of the Legal Research Group on the topic of "The Legal Status of Same-Sex Couples in the EU. Cross-boarder recognition and...

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