Wednesday, 16 July 2014

Hämäläinen v Finland - the Article 12 issue

One of the worst aspects of the judgment in Hämäläinen v Finland is that the Grand Chamber has now explicitly established that same-sex couples have no right related to marriage under Article 12 of the Convention. 

The Grand Chamber has stated that Article 12:

enshrines the traditional concept of marriage as being between a man and a woman [and] cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (§ 96).

This interpretation by the Grand Chamber can be seen as much more decisive than the Chamber judgment in Schalk and Kopf v Austria which, although ultimately holding that Austria had not violated Article 12 by not permitting a same-sex couple to marry, did state:

the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex (§ 61). 

That statement produced dissent from Judges Malinverni and Kovler who stated that Article 12 is 'inapplicable to persons of the same sex'.

Hämäläinen v Finland seems to reiterate Malinverni and Kovler's view, rather than the interpretation that Article 12 might be applicable to persons of the same-sex in some circumstances. 

The majority in Hämäläinen v Finland quote the authority of the judgment in Rees v the United Kingdom to hold that Article 12 protects 'the traditional concept of marriage as being between a man and a woman'.

However, what the Grand Chamber does not do is to quote a key aspect of the Rees judgment which states that although Article 12 'lays down that the exercise of this right shall be subject to the national laws of the Contracting States' it is also the case that the 'limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired' (§ 50).

The Grand Chamber has not given any consideration as to whether Finland, in requiring Heli Hämäläinen to transform her marriage into a registered partnership, has impaired the very essence of the rights available under Article 12 (although we can take from the Grand Chamber's silence on this issue that it does not regard Finland to have done so).

Overall, what all same-sex couples (LGB and T) can take from the Grand Chamber judgment in Hämäläinen v Finland is that the European Court of Human Rights has no intention of recognising a right to marriage under the Convention in the near future. Like it has done so often in respect of so many complaints about inequalities based on sexual orientation in the time since the Convention came into force, the Court refuses to take a moral lead to address discrimination and relies on 'tradition' to stay in the safe waters of the status quo.



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