In cases concerning the individual rights of lesbians, gay men and bisexuals, the Court has been more progressive and made a significant impact on the legal situation for lesbians, gay men and bisexuals in Europe. At the same time, in terms of rights for same-sex partners, the Court took a less progressive and proactive approach, leaving these issues to the discretion of individual states.
In the early years of the European Commission and Court of Human Rights, gay men were already challenging the legislation banning consensual sex between adult men. At that time the Commission rejected all these applications and stated that such legislation did not breach the European Convention on Human Rights.
In the case of Dudgeon v UK (1981), the European Court of Human Rights for the first time declared that legislation criminalising consensual sexual acts between adult men in Northern Ireland was in breach of Convention Article 8 which provides a right to a private life. The Court also confirmed that such legislation contradicted the right to a private life in the case of Norris v Ireland (1988) and Modinos v Cyprus (1993).
Similarly, in the early days of its work, the European Commission on Human Rights rejected applications from gay men who were challenging the higher age of consent for gay men. The Commission changed its stance in the case of Sutherland v UK (1996) where the Commission found that the higher age of consent for gay men was discriminatory and violated a right to a private life. This case was supported by Stonewall and resulted in an equal age of consent in the UK. The European Court of Human Rights confirmed that the higher age of consent for gay men was discriminatory and in breach of the European Convention on Human Rights in two more recent judgements, L. and V. v Austria (2003) and S.L. v Austria (2003).
In the case of Laskey, Jaggard and Brown v UK (1995), the European Court of Human Rights unanimously decided that consenting sadomasochistic sexual activities between adult men were not protected by Article 8 of the Convention which guarantees a right to private life. In this case, a group of gay men were imprisoned after the police discovered video tapes featuring these men engaging in consensual sadomasochistic acts in private. Although the Court agreed that there was an interference with their private lives, the Court justified such interference in order to protect ‘morals and health.’
In a series of cases, the European Court of Human Rights declared that discharging lesbians, gay men and bisexuals from the military forces because of their sexuality violated Article 8 of the Convention – the right to a private life. The cases were Lustig-Prean and Beckett v UK (1999), Smith and Grady v UK (1999), Perkin and R v UK (2002) and Beck, Copp and Bazeley v UK (2002). In all cases the applicants had been serving in the military forces and were discharged after the military authorities conducted investigations which confirmed that the applicants were homosexual. Stonewall supported the case of Lustig-Prean and Beckett v UK.
In the case of Salgueiro Da Silva Mouta v Portugal (1999), the Court declared that refusing child custody to a gay man simply because of his homosexuality was in breach of Article 8 of the Convention, the right to a private life. It was declared discrimination on the grounds of sexual orientation and violated Article 14 of the Convention which prohibits discrimination. In this case, after divorcing his wife, Mr Mouta was granted access to his child. However, his former wife did not comply with the agreement and did not allow Mr Mouta to visit their child. During the court battles in Portugal, Mr Mouta lost his case and child custody was granted to his former wife. The reason given to justify refusing him child custody was his homosexuality and cohabitation with another man.
The case of Frette v France (2002) dealt with the issue of adoption by a gay man. Mr Frette applied to adopt a child but the courts in France decided that adoption by a gay man could ‘pose substantial risks to the child’s development’. Mr Frette complained to the European Court of Human Rights claiming that refusal to allow him to adopt a child was in breach of Article 8 of the Convention and was based exclusively on discrimination because of his sexual orientation. The Court did not find a violation of the Convention in this case and refused Mr Frette the right to adopt, using the argument that by allowing Mr Frette to adopt, the child's best interests would be harmed because the child would be ‘brought up by a homosexual and deprived of dual maternal and paternal role models.’ Some of the judges disagreed with the majority and said that ‘when all the countries of the Council of Europe are engaged in a determined attempt to counter all forms of prejudice and discrimination, we regret that we cannot agree with the majority’.
Until July 2003, the European Court of Human Rights had not declared unequal treatment of same-sex partners compared to married or cohabiting opposite sex partners as violating the Convention. The Court rejected the idea that same-sex couples constituted a family and allowed countries to treat same-sex couples less favourably than opposite sex couples. However, the situation changed with the 2003 Court’s decision in Karner v Austria.
In the case of Simpson v UK (1986) the European Commission of Human Rights did not find a violation of the Convention and declared the application inadmissible. In this case a woman was evicted from public housing after the death of her female partner. The Commission stated that there was no interference with the applicant’s private life because 'her partner was dead and she was living alone.’
The European Commission of Human Rights has rejected four applications from same-sex bi-national couples – X and Y v UK (1983), W.J. and D.P. v UK (1986), C. and L.M. v UK (1989) and Z.B. v UK (1990). In all these cases foreign partners of British lesbians and gay men were not allowed to stay in the country with their partners. The Commission decided that by denying the partners the possibility to stay together in the country, the UK had not violated the Convention.
In the application of Kerhoven and Hinke v the Netherlands (1992), the Commission did not find a violation of the Convention in a case where a lesbian was refused parental authority over her female partner’s son by donor insemination.
In the case of Mata Estevez v Spain (2001) the Court, without considering the case, declared inadmissible a complaint from Mr Estevez, a Spanish gay man whose male partner of more than 10 years had died in a road accident and who was rejected a surviving spouse pension. The Court agreed that the situation would be different if the partner were of the opposite sex, but stated that a refusal by the Spanish authorities to pay Mr Esteves a survivor pension following his partner’s death did not violate his right to a private life and was not discriminatory.
Karner v Austria, is the first ever case relating to the rights of same-sex partners that the Court has agreed to consider. It involved a complaint from Siegmund Karner, an Austrian gay man who has lived in his male partner’s flat since 1989 and shared the expenses of the flat. Mr Karner’s partner died in 1994 and designated Mr Karner as his heir. However, the landlord of the property started the process of terminating the tenancy with Mr Karner.
District and Vienna Regional Courts interpreted the term ‘life companion’ of the Rent Act as including same-sex partners who lived together for a long time. However, the Supreme Court disagreed with this interpretation. For the first time in its history, the European Court of Human Rights ruled that this was discrimination based on sexual orientation and that Convention has been breached. For more details on this historical case click here.
All decisions and judgments of the European Commission and the European Court of Human Rights can be found on the Court website: www.echr.coe.int. Please go to 'Judgements and Decisions', then click on 'Search the Case-Law - HUDOC' and conduct your search for particular decisions or judgements.