Monday, 25 February 2013

Judges De Gaetno and Vučinić and sexual orientation

In my post of 14th February I drew attention to two judges in the European Court of Human Rights - Judges De Gaetno and Vučinić - who recently made a distinction between 'gay rights' and 'fundamental human rights' in their partly dissenting opinion in Eweida and Others v the United Kingdom.

Readers may be interested to know how these judges have voted in respect of other sexual orientation related complaints that they have heard.

In fact, both judges, members of the Fourth Section of the Court, have only voted, as far as I can tell, on the merits of one other sexual orientation related complaint each.

Judge De Gaetno joined the Court as the judge for Malta in 2010. Other than his partly dissenting vote in Eweida and Others v the United Kingdom, he also voted against the majority decision in X. and Others v Austria that has recently been discussed on this blog. Judge De Gaetno has therefore twice voted in the negative in respect of human rights relating to sexual orientation.

Judge Vučinić joined the Court as the judge for Montenegro in 2008. Other than his partly dissenting vote in Eweida and Others v the United Kingdom, he filed an interesting concurring opinion in J.M. v the United Kingdom in which the Fourth Section unanimously upheld a complaint about discrimination on the grounds of sexual orientation in the payment of child maintenance. In the judgment the majority refused to consider the complaint under the 'family' life limb of Article 8, even though the judgment was given after the Court had recognised same-sex couples as constituting a family for the purposes of Article 8 in Schalk and Kopf v. Austria and P.B. and J.S. v. Austria. Judge Vučinić, joined by two colleagues, went to some lengths to argue that same-sex couples should be considered to constitute a family for the purposes of Article 8:

'J.M. offered a good opportunity to contribute to the emerging change in our case-law. Regrettably, the majority chose to avoid taking a clear position. In paragraph 50 the Court observes that the case is related to situations that took place in 2001-2002 and 2006. The Court confirms that “the consensus among European States in favour of assimilating same-sex relationships to heterosexual relationship has undoubtedly strengthened since it examined the issue in 2001 in the Mata Estevez decision”. However, the Court did not find it necessary to “decide whether the facts of the case, which are virtually contemporaneous with those of Mata Estevez case itself, also fall within the ambit of Article 8 in its family life aspect”. Judicial self-restraint is often a virtue, but not in cases in which courts should admit their own mistakes. It cannot be excluded that the Court was wrong already in Mata Estevez. In any case, we should not have refrained from unequivocal confirmation that today, in 2010, the notion of family life can no longer be restricted to heterosexual couples alone.'

It will be interesting to follow the decisions of these two judges in the future.




 
 

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