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Same-sex civil unions underway in Greece. Mirabile dictu!

On 7 November 2013, the European Court of Human Rights (Court hereinafter) handed down its much-awaited decision in Vallianatos and Others v Greece (applications nos. 29381/09 and 32684/09), and delivered the first major win for gay rights in Greece. In an exemplary ruling, the Court held Greece to be in violation of Article 14 (prohibition of discrimination) of the European Convention of Human Rights (Convention hereinafter) taken in conjunction with Article 8 (respect for one’s private and family life). The applicants had complained against the exclusion of same-sex couples from the scope of Law no. 3719/2008, which extended only to different-sex couples the right to enter into a civil union.

Background to the enactment of the Law on Civil Unions

The impugned Law, entitled “Reforms concerning the family, children and society”, entered into force on 26 November 2008 and introduced into the Greek legal order the institution of civil union (σύμφωνο συμβίωσης) as a form of partnership alternative to marriage. Section 1 of the Law, headed “Conclusion of a civil union”, provides that such unions can be entered into only by two adults of different sex, and, thus, excludes same-sex couples from its scope.

A 2004 Report by the National Commission for Human Rights, inviting the Minister of Justice to inquire into the legal recognition of same-sex partnerships, and the expressed intention of the Government in 2006 to introduce relevant legislation, had raised the hopes for gay men and women in Greece. Those expectations were quashed in 2008 when the new Government introduced a Bill that extended the right to enter into a civil union only to different-sex couples. A heated debate, both inside and outside the Parliament, preceded the implementation of the Law.

In a press release, the Holy Synod, the ruling body of the Church of Greece, described civil unions as “prostitution” and expressed its “hope and wish that the Bill in question will not pass into Law” (http://tinyurl.com/oprkrpx, in Greek). As expected, the discussion in the Parliament revolved largely around the exclusion of same-sex couples from the Bill. Understanding that the Court would find the Law incompatible with the Convention, the far-right party suggested to have the Bill altogether withdrawn instead of running the risk of a Court-mandated amendment in Strasbourg. Responding primarily to the former objections, the Minister of Justice answered that: “Same-sex couples should not be included … that the demands and requirements of Greek society do not justify going beyond this point.” (see: http://tinyurl.com/p34cz9d for the travaux préparatoires, in Greek). Addressing the latter objections, he clarified that he is not in the position to know whether this Law would end up before the Court and that, should this happen, Greece would execute the decision, whatever its content.

As it had been anticipated, in May 2009, four same-sex couples, residents in Athens, as well as an association (whose standing was denied), lodged an application against Law no. 3719/2008 relying on Article 8 of the Convention taken in conjunction with Article 14.

Institutionalized homophobia in Greece

Amongst else, the applicants faulted the Government for reinforcing homophobia in the Greek society by excluding same-sex couples from the scope of the law. As regards the rampant homophobia in Greece, a very brief digression is in order. A great many politicos, from nearly all political parties, and bishops, have repeatedly employed hateful language when addressing the issue of homosexuality. To tragicomic effect, the National Radio and Television Council, in 2003, called the exchange of a kiss on the mouth between two men as “vulgar and unacceptable” and fined a TV station with 100.000 euros for broadcasting that depiction (http://tinyurl.com/q8agudd). Although the fine was lifted upon appeal to the Greek Council of State (the Supreme Administrative Court), the effects of that fine have been both lasting and pernicious, and have led to many incidents of self-censorship by TV stations, in a bid to avoid further fines. Always within the realm of the absurd, another example, from numerous such incidents, is the removal of a gay kiss from the broadcast of the British drama Downton Abbey by the (now defunct) publicly owned “New Greek Television” (http://tinyurl.com/cb44gkz). The Greek courts have had their masterstrokes of homophobia; most notoriously, the Court of Cassation (981/2006), while annulling a will, referred to the decedent’s homosexuality as a “disorder that aggravated to the point of pathology”, and did not shy away from presenting gratuitous details of his personal life, such as the fact that the decedent “had displayed, since his childhood, tendencies of passive homosexuality [sic] and engaged in casual erotic same-sex relationships”. In its despicable Judgment 676/2009, the Court of Cassation found that the dismissal of an HIV-positive employee (incidentally homosexual, as reported in the press) was fully justified by the interests of the employer, insofar as the termination aimed to restore the calm in the business as “disrupted by the extremely serious and contagious disease”. Apart from being a monument to hate and ignorance, this judgment, effectively, “normalises” the animus towards HIV-infected patients, while perpetuating the stereotypes shared by a big percentage in the Greek society about AIDS being a “gay disease”. Naturally, the European Court of Human Rights in I.B. v. Greece (application no. 552/10) chastised the Court of Cassation (and, in turn, Greece) for the above decision.

Laws on civil unions before the Court

Before delving into the merits of the case in Vallianatos, the Court reiterated its previous-case law and principles on gay rights. In line with the position taken already in Schalk and Kopf v. Austria, where the Court first acknowledged that the relationship of a cohabiting same-sex couple living in a stable de facto relationship fell within the protective scope of “family life” (and not under the more flexible notion of “private life”) under Article 8, the Court reasserted in Vallianatos that “it [would be] artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple [could not] enjoy ‘family life’ for the purposes of Article 8”. Reiterating then its well-established interpretation of discriminatory treatment, the Court affirmed that a difference in treatment is discriminatory when it has no objective and reasonable justification; the burden of proof lies with the Government to demonstrate that any difference in treatment pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim pursued. The margin of appreciation that States enjoy in this respect is particularly narrow when the difference in treatment is based on sexual orientation for which “particularly convincing and weighty reasons” are required by way of justification. (see also Salgueiro da Silva Mouta, § 36; and X and Others v. Austria, § 99).

The Court proceeded to carefully dissect the two arguments that the Government employed to justify its choice not to bring same-sex relationships within the scope of Law no. 3719/2008. According to the first line of argumentation, same-sex persons in Greece could still gain access through private law tools to the rights provided under the institution of civil union. The Court rejected that argument,  on the grounds that “the civil partnerships provided for by Law no. 3719/2008 as an officially recognised alternative to marriage have an intrinsic value for the applicants irrespective of the legal effects, however narrow or extensive, that they would produce”. Echoing the oral arguments of the applicants, the Court acknowledged the symbolic value that the legal recognition of a relationship holds for the partners and the rest of the society. To borrow the phrasing used by the applicants’ counselor, same-sex partners in Greece “are in a legal no man’s land on grounds of their sexual orientation only; they have lost the symbolic right to be seen as a fully-fledged citizen, they are second-class citizens”. Indeed, same-sex partners in Greece are not legally empowered to present themselves as a couple in the eyes of the administration; they face insurmountable obstacles in what regards the management of their shared estate; they have to ground their inheritance rights in a valid will and, even then, a significant portion of one’s estate will by law be reserved for the surviving relatives, in contrast to the inheritance rights of different-sex partners; they are not entitled to social welfare benefits and tax cuts, which in contrast are readily available to opposite-sex partners in marriage or civil union.

The second set of arguments raised by the Government, concerned the best interests of children born out of wedlock. According to the Government, “Law no. 3719/2008 is designed to strengthen the legal status of children born outside marriage and to make it easier for parents to raise their children without being obliged to marry”. The biological inability of same-sex partners to bear children together is, in the Government’s mind, the objective justification behind their exclusion from civil union. The Court accepted that the protection of the family in the traditional sense and the best interests of the child are legitimate aims from the standpoint of Article 8 ECHR, including the intent “to regulate the situation of children born outside marriage and also indirectly strengthen the institution of marriage within Greek society”. The Court then proceeded to examine whether the Government had abided by the principle of proportionality while pursuing the above-stated aims. The Court held that, first, there was a broad range of measures capable of protecting the family in the traditional sense; second, given that the Convention is a living instrument which should be interpreted in present-day conditions, any State, regulating family affairs, ought to take into account societal developments, “including the fact that there is not just one way or one choice when it comes to leading one’s family or private life”. The Court concluded that this Law was designed first and foremost with the idea of providing a legal alternative to the traditional institution of marriage, and was not confined to the protection of children born outside of marriage. To this end, the Court raised the point that the Law allowed different-sex couples without children to enter into a civil union, without extending the same right to childless same-sex couples. Of equal importance was the fact that various sections of the Law regulate the living arrangements between the different-sex partners in a civil union, such as their financial relations and the maintenance obligations as well as the right to inherit, independently of the existence or not of a child. The Court also held that the Government had failed to demonstrate how the interests of children born outside marriage would have been compromised, had same-sex couples been brought within the scope of the law.

Political developments following the Court’s decision

At the time of writing, there has been neither much coverage in the mainstream Greek press on the ramifications of the Court’s final ruling nor any official statement by the Government. On 20 November, the political party “Democratic Left” (Δημοκρατική Αριστερά), former member of the present Greek (coalition) Government, submitted an Amendment that would bring in line the Law no. 3719/2008 with the Court’s findings; essentially, the submitted Amendment proposes the omission of the words “different sex” from Section 1 of the Law, leaving otherwise the Law as it stands (http://tinyurl.com/owddvr8, in Greek). It remains to be seen when and how and whether the present Government will remedy the existing discrimination. In response to the mounting pressure on the Government to duly and immediately execute the Court’s decision, a high-profile member of the Holy Synod pledged to excommunicate those parliamentarians that would vote for same-sex civil unions (http://tinyurl.com/od3ny2z). It is regrettable that back then the Greek government opted, in full knowledge, to adopt a clearly discriminatory law instead of shouldering the political costs of extending rights to gay people; five years later, it is high time that the Greek legislature repaired, without any delay, the injustice done to an already discriminated segment of its population-

Conclusion

Concluding on a more lyrical note, in the queer film Victor/Victoria, there is a soft-shoe number called “You and Me”, where a gay male couple, performed by Julie Andrews and Robert Preston, sings “we don’t care that tomorrow comes with no guarantee, we’ve each other for company”. However moving and sentimental this lyric in its depiction of dignified suffering, however poignantly it resonates with the experiences of numerous same-sex couples in Greece, it is high time that these citizens also obtained the rights and guarantees that their different-sex counterparts rightfully enjoy.

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Spyridon Drosos

Spyridon Drosos

1 Comment

  1. Cesare Pitea
    dicembre 13, 2013 at 12:10 pm — Rispondi

    The post gives a good account and a useful contextualisation of the Court’s judgment with precious insights from a Greek perspective. I would like to complement it with an Italian look.
    To my view, the outcome of the case was quite predictable, were the Court to follow, as it did, its jurisprudence: indeed, a difference in treatment between non-married couples based on sexual orientation has always been considered incompatible with the non-discrimination principle.
    By contrast, the Court did not need to touch upon the most controversial aspect of its case-law concerning LGBT family rights, namely whether it is still compatible with the Convention the refusal by a Contracting State to give legal recognition to same-sex couples in any form and content, as it is currently the case in Italy and in other States. The issue was avoided to a certain extent in Schalk and Kopf v. Austria, where the Court deemed necessary to answer the different question of whether Austria should have provided for such recognition earlier than it actually did (§§ 103-104 of the Judgment). In the present case, the question was not material, but a couple of passages of the judgment seem to support future arguments pointing at a negative answer to it.
    In the first place, the Court’s reasoning gives a concrete legal significance to the statement that “just like differences based on sex, differences based on sexual orientation require “particularly convincing and weighty reasons” by way of justification” (Smith and Grady, § 90; Karner, §§ 37 and 42; L. and V., § 45; and X and Others, § 99). The Court stresses that in these cases, where the margin of appreciation is narrow, the burden falls on the responding Government to show that the impugned measure is not only “suitable in principle for achievement of the aim sought”, but that it is also “necessary, in order to achieve that aim, to exclude certain categories of people – in this instance persons living in a homosexual relationship – from the scope of application of the provisions at issue” (Vallianatos, § 85). This line of reasoning is not entirely new in the Court’s case-law (see Karner, § 41, and Kozak, § 99), but its reiteration, at least in principle, by the Grand Chamber may prove important, since this argument was overlooked in the Schalk and Kopf judgment, as the dissenting Judges promptly underlined (see the Joint Dissenting Opinion of Judges Rozakis, Spielmann and Jebens, § 8).
    The second remarkable aspect of the Vallianatos Judgment in this perspective is that the Court firmly rejects the argument that the continuing lack of recognition of same-sex relationships through may be justified in the view of possible private law arrangements ensuring comparable legal effects. The Court rightly stresses that “the civil partnerships (…) as an officially recognised alternative to marriage have an intrinsic value for the applicants irrespective of the legal effects, however narrow or extensive, that they would produce” (Vallianatos, § 81). This intrinsic value consists in the couples “having their relationship officially recognised by the State” (ibid.). This approach has potentially far reaching consequences. It shifts the focus in legal narrative about LGBT rights in Strasbourg. Homosexuality ceases to be merely a legitimate individual “choice”, stemming from everyone’s freedom, that the society at large must “tolerate”. Relevance is given to its relational dimension, as a social value which deserves “recognition” by the law, since it generates solidarity ties based on affection and love that society must protect as such. Indirectly, this approach also implies that non-recognition carries with it a degree of stigmatisation of homosexuality, by creating a double standard based on sexual orientation.
    Lastly, the judgment shed light over a possible inconsistency of the present case-law: the Greek legislation is held to be in breach of the Convention, even if it affords legal protection to a wider range of family situations than, to say, the Italian legislation, which fails to recognise any form of family other than traditional wedlock-based “heterosexual” relationship, and that at present is allegedly Convention-compliant.
    In the light of the above, when the Court will deal with the Italian (or an Italian-like) situation, will it be still possible to argue that a legislation preventing same-sex families to obtain legal recognition in any form whatsoever is still in line with the Convention? This remains to be seen, since the Court’s jurisprudence in this matter is far from being consistent. However, it is not arbitrary to say that the Vallianatos judgment makes a silent move towards a right to legal recognition for same-sex couples in Europe.

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