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Salgueiro da Silva Moutav v. Portugal

Published online by Cambridge University Press:  27 February 2017

Laurence R. Helfer
Laurence R. Helfer*
Affiliation:
Loyola Law School, Los Angeles
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Type
International Decisions
Information
American Journal of International Law , Volume 95 , Issue 2 , April 2001 , pp. 422 - 430
Copyright
Copyright © American Society of International Law 2001

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References

1 Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5), Nov. 4, 1950, 213 UNTS 222. The Convention and its various protocols are available online at <http://conventions.coe.int/treaty/EN/cadreprincipal.htm>.

2 See Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993); Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988); Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981).

3 See infra notes 46-47 and accompanying text.

4 See, e.g., H. F. v. Austria, App. No. 22646/93 (Eur. Comm’n H.R. June 26, 1995) (unpublished admissibility decision) (upholding 18-year age of consent for gay men as opposed to 14-year age of consent for heterosexuals and lesbians against challenge on privacy and nondiscrimination grounds); W.J. v. United Kingdom, App. No. 12513/86 (Eur. Comm’n H.R. July 13,1987) (unpublished admissibility decision) (deportation of foreign national in long-term same-sex relationship with citizen does not violate couple’s right to respect for private life and is not discriminatory even though domestic immigration law permitted nondeportation of unmarried heterosexual partner in similar circumstances); S. v. United Kingdom, App. No. 11716/85, 47 Eur. Comm’n H.R. Dec. & Rep. 274 (1986) (upholding refusal to allow partner in lesbian relationship to renew public housing lease, although similar renewals granted to unmarried heterosexual couples); B. v. United Kingdom, App. No. 9237/81, 34 Eur. Comm’n H.R. Dec. & Rep. 68 (1983) (upholding ban on homosexuals in the military); X. v. United Kingdom, App. No. 9369/81, 32 Eur. Comm’n H.R. Dec. & Rep. 220 (1983) (upholding denial of permanent residence permit to foreign partner in same-sex couple and refusing to consider couple as a family). See also cases cited infra note 47. For a discussion of these cases, see Peter van, Dijk, The Treatment of Homosexuals Under the European Convention on Human Rights, in Homosexuality: A European Community Issue 179 (Waaldijk, Kees & Clapham, Andrew eds., 1993).Google Scholar

The judgments of, and other materials relating to, the European Court of Human Rights, as well as the European Commission on Human Rights, are available online at the Court’s Web site, <http://www.echr.coe.int>.

5 App. No. 33290/96 (Eur. Ct. H.R. Dec. 21, 1999).

6 App. No. 35765/97 (Eur. Ct. H.R.July 31, 2000); see also Lustig-Prean v. United Kingdom, App. Nos. 31417/96 & 32377/96 (Eur. Ct. H.R. Sept. 27,1999) (government’s exclusion of lesbians and gay men from military service violates Convention’s privacy guarantee); Smith v. United Kingdom, App. Nos. 33985/96 & 33986/96 (Eur. Ct. H.R. Sept. 27, 1999) (same). For a summary and analysis of these cases, see Rhona, K. M. Smith, Case Report: Lustig-Prean & Beckett v. United Kingdom, 94 AJIL 382 (2000).Google Scholar

7 Salgueiro da Silva Mouta, para. 12.

8 Id., para. 13.

9 Id., para. 14 (p. 9). Paragraph 14, which sets forth in its entirety the decision of the Court of Appeal, is six pages long. Consequently, in order to locate material within that paragraph, the page number of the Salgueiro da Silva Mouta decision (as printed out from the online version on the ECHR’s Web site) will also be given.

10 Id. (pp. 9-10).

11 Id. (p. 9).

12 Id. As for die father’s visitation rights, the Court of Appeal cautioned Salgueiro da Silva Mouta that he should shield his child from knowing that he and his male partner live together as a couple. Id. (p. 10). The mother continued to deny Salgueiro da Silva Mouta any form of access to his daughter, however, after the Court of Appeal’s ruling. Id., para. 18.

13 Id., para. 25. The phrase “margin of appreciation” refers to the zone of discretion the ECHR grants to national governments to comply with their human rights obligations under the Convention. For a discussion and critique of this doctrine, see Laurence, R. Heifer, Consensus, Coherence and the European Convention on Human Rights, 26 Cornell Int’l L. J. 133, 136-38 (1993).Google Scholar

14 Salgueiro da Silva Mouta, para. 25.

15 Article 8 provides, in relevant part:

  • 1.

    1. Everyone has the right to respect for his private and family life . . . .

  • 2.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

16 Article 14 provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

17 Salgueiro da Silva Mouta, para. 26.

18 Id., para. 29.

19 Id., para. 28.

20 Id. In support of this statement, the Court noted that the protected grounds listed in Article 14 are “illustrative and not exhaustive, as is shown by the words ‘any ground such as’ (in French ‘notamment’).” Id.

21 Id., para. 35.

22 Id., para. 36 (citing Hoffmann v. Austria, 255-C Eur. Ct. H.R. (ser. A) at 58 (1993) (holding that a mother’s membership in the Jehovah’s Witnesses could not be used against her in a child custody decision and stating that “a distinction based essentially on a difference in religion alone is not acceptable”)).

23 Id. Having found a violation of Article 14 together with Article 8, the ECHR found it unnecessary to examine whether Article 8 alone had been violated. Id., para. 37.

24 Section 13 of the Sexual Offences Act, 1956, 4 & 5 Eliz. 2, ch. 69, §13, provides that “[i]t is an offence for a man to commit an act of gross indecency with another man, whether in public or private.” A.D.T. was sentenced and conditionally discharged for two years. A.D.T. v. United Kingdom, App. No. 35765/97, para. 10 (Eur. Ct. H.R. July 31, 2000).

25 Sexual Offences Act, 1967, ch. 60, §2(a).

26 In fact, A.D.T. had filed his application with the European Commission on Human Rights, but the case was transferred to the Court after Protocol No. 11 abolished the commission and replaced it with a permanent European Court of Human Rights. See infra note 46.

27 A.D.T., para. 21.

28 Laskey v. United Kingdom, 1997-1 Eur. Ct. H.R. 120.

29 A.D. T., para. 22. The Court stressed that A.D.T. had not been charged with any criminal offense relating to the making or distribution of the tapes, that he had attempted to conceal his sexual orientation from the public, and that he had expressed a desire for anonymity before the Court. Id., para. 25.

30 Id., para. 26.

31 Id., para. 29. The ECHR first articulated this standard in Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) at 22 (1976).

32 AD. T., para. 35.

33 Id.; see id., para. 32.

34 Id.,para. 37.

35 Id., para. 36.

36 Id., para. 37.

37 Id.; see cases cited supra note 2.

38 A.D.T., paras. 38-39.

39 Id., paras. 18-19, 40.

40 Id., para. 41.

41 See infra note 46 and accompanying text.

42 See cases cited supra note 4 & infra note 47; but see Sutherland v. United Kingdom, App. No. 25186/94 (Eur. Comm’n H.R. July 1, 1997) (Commission report) (holding that 18-year age of consent for gay men and 16-year age of consent for heterosexuals and lesbians violates Convention’s nondiscrimination clause).

43 Salgueiro da Silva Mouta v. Portugal, App. No. 33290/96, para. 36 (Eur. Ct. H.R. Dec. 21, 1999).

44 It is uncertain whether the ECHR will build upon Salgueiro da Silva Mouta and find that distinctions based on sexual orientation, like those based on sex, religion, nationality, and legitimacy/illegitimacy, can be justified only by “overriding reasons.” See van Dijk, P. & van Hoof, G. J. H., Theory and Practice of the European Convention on Human Rights 727-29 (3d ed. 1998)Google Scholar (identifying these four grounds of discrimination as those that ECHR scrutinizes more strictly than others). The Court’s citation to Hoffmann v. Austria, 255-C Eur. Ct. H.R. (ser. A) at 58 (1993), a decision involving religious discrimination, see supra note 22, suggests that the Court may one day treat sexual orientation as what American constitutional lawyers would refer to as a suspect classification.

45 See Feldman, David, The Developing Scope of Article 8 of the European Convention on Human Rights, 3 Eur. Hum. Rts. L. Rev. 265, 265–73 (1997)Google Scholar (discussing ECHR’s expansive interpretation of the concept of “private life”).

46 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 155), opened for signature Nov. 5, 1994 (entered into force Nov. 1, 1998). For an analysis, see Drzemczewski, Andrew, The European Human Fights Convention: Protocol No. 11—Entry into Force and First Year of Application, 21 Hum. Rts. L. J. 1 (2000).Google Scholar

47 Johnson v. United Kingdom, 47 Eur. Comm’n H.R. Dec. & Rep. 72 (1986) (rejecting challenge to Sexual Offences Act 1967 provision prohibiting private conduct in which two or more men “take part or are present”); Kerkhovenv. The Netherlands, App. No. 15666/89 (Eur. Comm’n H.R. May 19,1992) (unpublished admissibility decision) (rejecting claim that relationship of a woman with the child of her long-term lesbian partner falls within the scope of family life or that government’s failure to grant parental rights to such a person is discriminatory). Admittedly, Kerkhoven—which involved the familial link between a nonbiological parent and her long-term partner’s biological daughter—presented more difficult issues than Salgueiro da Silva Mouta.

48 See, e.g., Selmouni v. France, App. No. 25803/94, para. 101 (Eur. Ct. H.R. July 28,1999) (“the Convention is a living instrument which must be interpreted in the light of present-day conditions”).

49 Thus, the Court has repeatedly held that Article 14 has “no independent existence” and merely complements the other substantive provisions of the Convention and its Protocols. See, e.g., Camp v. The Netherlands, App. No. 28369/95, para. 34 (Eur. Ct. H.R. Oct. 3, 2000).

50 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 177), opened for signature Nov. 4, 2000. Article 1 of the protocol states:

The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

The protocol will enter into force after ten member states of the Council of Europe have ratified it. Id., Art. 5.

51 Proposed Additional Protocol Broadening Article 14 of the European Convention: The Need for Express Inclusion of “Sexual Orientation “ (Submission of the European Region of the International Lesbian and Gay Association to the Steering Committee on Human Rights, Council of Europe) (May 13,1999), aKhttp://www.steff.suite.dk/artl4.htm>; see also Eur. Pari. Assembly Op. No. 216, Draft Protocol No. 12 to die European Convention on Human Rights (2000), at <http://stars.coe.fr/index_e.htm> (stating Assembly’s belief “that die enumeration of grounds in Article 14 is, without being exhaustive, meant to list forms of discrimination which it regards as being especially odious. Consequently the ground ‘sexual orientation’ should be added [to die list of grounds in Protocol No. 12].”).

52 Explanatory Report to Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, para. 20 (June 26,2000), at <http://conventions.coe.int/treaty/en/Reports/Html/l77.htm>.

53 Id.

54 Sixteen of the 41 member states did not sign die protocol on the date it was opened for signature. 53 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, Art. 13, O.J. (C 340) 1 (1997), reprinted in 37 ILM 56, 82 (1998).

55 Council Directive 2000/78/EC of 27 Nov. 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J., (L303) 16. See Wintemute, Robert, European Community Set to Ban Employment Discrimination, Lesbian & Gay Law Notes (Nov. 2000), at <http://qrd.diversity.org.uk/qrd/usa/legal/lgln/11.00>Google Scholar.

57 Council Directive 2000/78/EC, supra note 56, Arts. 1-3.

58 Id., Art. 18. Three additional years are allowed for implementing legislation concerning disability and age.

59 As of the end of 2000,7 of the 15 EC member states, with a population of over 230 million people (or roughly two-thirds of the EC’s population), had not enacted legislation barring sexual orientation discrimination in employment. The 7 states are Austria, Belgium, Germany, Greece, Italy, Portugal, and the United Kingdom. Wintemute, supra note 56.

60 Id. The 13 applicant countries are Bulgaria, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia, and Turkey. Id.

61 See, e.g., T. v. United Kingdom, App. No. 24724/94, para. 70 (Eur. Ct. H.R. Dec. 16,1999) (“since the Convention is a living instrument, it is legitimate when deciding whether a certain measure is acceptable under one of its provisions to take account of the standards prevailing amongst the member States of the Council of Europe”).

62 See, e.g., Sadik v. Greece, 1996-V Eur. Ct. H.R. 1638, para. 30; Andersson v. Sweden, 226-A Eur. Ct. H.R. (ser. A) at 35 (1992) (Lagergrefi, J., dissenting in part on other grounds).

63 See Information Note on the Court’s Statistics, 1 January-31 August 2000, at <http://www.echr.coe.int/BilingualDocuments/StatisticalInformation(jan-sep2000).htm> (Sept. 28, 2000); Drzemczewski, supranote 46, at 9.

64 One such complaint is Szivarvany v. Hungary, App. No. 35419/97 (Eur. Ct. H.R. May 12, 2000), in which the ECHR refused to hear a challenge to a decision of the Constitutional Court of Hungary that upheld a law refusing to permit the registration of gay rights organizations where such organizations did not exclude individuals under 18 years of age from their membership. See Dec. 21/1996 on the Minimum Age for Membership of Homosexual-Oriented Associations (Const. Ct. Hung. May 17, 1996) (English translation on file with author).