‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Friday, 8 November 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 45

AIRPORT SECURITY In the case of Gahramanov v. Azerbaijan the Court dealt for the first time with the issue of deprivation of liberty in the context of airport security checks. The case concerned an airline passenger who complained in particular that his detention by the State Border Service (SBS) for airport security checks had been unlawful:
"40.  The Court reiterates (-) that the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see Austin and Others, cited above, § 59). An air traveller may be seen in this regard as consenting to a series of security checks by choosing to travel by plane (see Gillan and Quinton, cited above, § 64). In particular, these security checks may include having his identity papers checked or having his baggage searched, also waiting for further inquiries to be carried out to establish his identity or to determine that he does not represent a security risk for the flight.
41.  The Court accepts in this respect that where a passenger was stopped during border control in an airport by officers of the border service in order to clarify his situation and where this detention did not go beyond the time strictly necessary to accomplish relevant formalities no issue arises under Article 5 of the Convention."
The Court ruled that a few hours’ detention of an airline passenger for airport security checks was not excessive. The Court considered that the period during which the applicant had been compelled to stay at the airport had not exceeded the time strictly necessary for fulfilling the relevant administrative formalities in order to clarify his situation. 

SAME-SEX COUPLES - In its Grand Chamber judgment in the case of Vallianatos and Others v. Greece the Court held that reasons for excluding same-sex couples from “civil unions” under Greek law were not convincing:
"91.  (-) the Court would point to the fact that, although there is no consensus among the legal systems of the Council of Europe member States, a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships. Nine member States provide for same-sex marriage. In addition, seventeen member States authorise some form of civil partnership for same-sex couples. As to the specific issue raised by the present case (see paragraph 75 above), the Court considers that the trend emerging in the legal systems of the Council of Europe member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples (see paragraphs 25 and 26 above). In other words, with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope. Moreover, this trend is reflected in the relevant Council of Europe materials. In that regard the Court refers particularly to Resolution 1728(2010) of the Parliamentary Assembly of the Council of Europe and to Committee of Ministers Recommendation CM/Rec(2010)5 (see paragraphs 28-30 above).
92.  The fact that, at the end of a gradual evolution, a country finds itself in an isolated position as regards one aspect of its legislation does not necessarily imply that that aspect conflicts with the Convention (see F. v. Switzerland, 18 December 1987, § 33, Series A no. 128). Nevertheless, in view of the foregoing, the Court considers that the Government have not offered convincing and weighty reasons capable of justifying the exclusion of same-sex couples from the scope of Law no. 3719/2008. Accordingly, it finds that there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention in the present case."
For a good comment on this judgment read Paul Johnson's guest post on ECHR Blog
“Clearly, for those interested in enhancing sexual orientation legal equality, this is a positive judgment. In upholding the applicants’ complaints the Court has established the foundation for a change in Greek law that will ultimately result in some legal recognition for same-sex couples (the exact terms of the recognition will be negotiated with the Committee of Ministers during the execution of the judgment). The judgment also means that a similar-facts complaint from a Lithuanian same-sex couple will almost certainly be successful. For same-sex couples in 2 of the 47 contracting states, this is therefore good news.

But the judgment should also be seen as limited. In typical Strasbourg fashion, it offers the most conservative and limited step forward in terms of same-sex partnership rights. The judgment cannot be read as introducing any positive obligation for contracting states to give same-sex couples access to legal forms of partnership recognition. In dealing only with discrimination created by the introduction of a civil partnership law excluding same-sex couples, the judgment not only avoids dealing with the lack of same-sex partnership rights in contracting states generally but also could, unintentionally, sustain legal inequalities. The contracting states that do not grant same-sex couples partnership rights – the majority of states in the Council of Europe – now know that if they introduce a legal alternative to marriage for different-sex couples they cannot exclude same-sex couples from it. Such states therefore know to ‘think twice’ about the consequences of making a legal alternative to marriage available.”
Also read: Frank Cranmer, Civil partnerships, the ECHR and discrimination between same-sex and opposite-sex couples and Marc de Werd, Kann denn Liebe Sünde sein? Adjudicating sensitive moral issues in Europe

 Courtesy Press Service of the European Court of Human Rights in Strasbourg

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