4 admissibility of the application

Team Number: 093

________________________________________________________________________

THE EUROPEAN HUMAN RIGHTS

MOOT COURT COMPETITION

2014/2015

B.N. and K.N.

(Applicants) vs.

Utopin Republic

(Government)

________________________________________________________________________

Submission for the Applicant

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SUMMARY OF THE RESULTS



The application is admissible as it meets all requirements set out under Art. 34 and 35 of the Convention. The Applicants, represented by an Utopin NGO, have locus standi and all admissibility requirements have been satisfied.



The Applicants submit that the present case should be considered under Art. 14 in conjunction with both Art. 12 and 8. Under Utopin law, same-sex couples receive unjustified differential treatment than different-sex couples regarding the legal recognition of marriage.

Discrimination on the ground of sexual orientation restricts the margin of appreciation.

 The Utopin Republic’s Supreme Court decision recognising K.N. as the biological mother of the children and awarding the parents of K.N.’s legal guardianship violates Art. 14 in conjunction with Art. 8. Furthermore, it violates B.N.’s right to respect for home under Art.

8, as it indirectly denies her access to the family income and home.



If the Court decides not to analyse Art. 14 in conjunction with Art. 12 and 8, the

Applicants submit that the refusal to recognise the valid Foretian marriage certificate violates

Art. 12 and 8 respectively.



The Utopin Republic’s Supreme Court decision of July 2014 recognising K.N. as the biological mother of the children violates B.N.’s right to respect for family life under Art. 8.

As this case concerns an essential aspect of B.N.’s individual identity, the decision interfering with B.N.’s right as guaranteed under Art. 8 cannot be justified under Art. 8(2), thus restricting the margin of appreciation allowed to the Utopin Republic.



The aforementioned decision also violates K.N.’s right to respect for private and family life under Art. 8. By failing to take into account that K.N.’s parents have acted against

K.N.’s manifested will, the decision awarding legal guardianship to K.N.’s parents violates

K.N.’s right to respect for family life. Taking K.N.’s vulnerable medical condition into account, the margin of appreciation allowed to the State should be restricted in the present case.

 The Utopolis Court of Appeal’s decision of 15 April 2014 imposing a fine on B.N. and damages to be paid to K.N. violates the Applicants’ right to respect for family life under

Art. 8, as it poses an obstacle to the Applicants’ decision to found a family together.



The aforementioned decisions also violate Art. 1 of Protocol 12, amounting to discrimination on the ground of sexual orientation .

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TABLE OF CONTENTS

SUMMARY OF THE RESULTS ...............................

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LIST OF REFERENCES ........................................................................................................ 3

1 Conventions and treaties ..................................................................................................... 3

2 Case Law ............................................................................................................................. 3

European Court of Human Rights.......................................................................................... 3

3 Secondary Sources .............................................................................................................. 5

LIST OF ABBREVIATIONS ............................................................................................ 7

4 ADMISSIBILITY OF THE APPLICATION ........


MERITS OF THE CASE ............................................


5 Violation of Art. 14 in conjunction with Art. 12 and 8 .................


5.1 Applicability of Art. 14 ....................................


5.2 Applicability of Art. 12 ....................................


5.4 Applicability of Art. 8 ...................................... Ошибка! Закладка не определена.

5.4.2. Unlawful differential treatment regarding the recognition of the relationship

................................................................................ Ошибка! Закладка не определена.

5.4.3 Unlawful differential treatment with regards to motherhood ..


5.4.4 Disproportionate effect of seemingly equal legislation with regards to legal guardianship ........................................................... Ошибка! Закладка не определена.

6 Violation of Art. 12 taken alone .............................


7 Violations of Art. 8 taken alone ..............................


7.1 Scope of Art. 8 .................................................


7.2 Supreme Court Decision rejecting B.N.’s Maternity ............. Ошибка! Закладка не определена.

7.3 Legal guardianship of K.N. ..............................


7.4 Decision imposing a fine and damages on B.N. for carrying on with the insemination procedure................................................................


8 Violation of Art. 1 of Protocol 12 ........................... Ошибка! Закладка не определена.

LIST OF REFERENCES

1 Conventions and treaties

Convention for the Protection of Human Rights and Fundamental Freedoms , Council of

Europe (4 Nov 1950)

Convention on Human Rights and Biomedicine, Council of Europe (4 Apr 1997) (ETS No.

164)

Convention on the Rights of Persons with Disabilities , United Nations (13 Dec 2006)

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2 Case Law

European Court of Human Rights

Airey v. Ireland , no 6289/73 (9 Oct 1979)

Akdivar and other v. Turkey , no. 21893/93 (16 Sep 1996)

Aksoy v. Turkey, no. 21987/93 (18 Dec 1996)

Alekseyev v. Russia , nos. 4916/07, 25924/08 and 14599/09 (21 Oct 2010)

Amuur v. France , no. 19776/92 (25 June 1996)

Bendenoun v. France , no. 12547/86 (24 Feb 1994)

Bobek v. Poland , no. 68761/01 (17 July 2007)

Bulut v. Austria , no. 17358/90 (22 Feb 1996)

Cardot v. France , no. 11069/84 (19 Mar 1991)

Case "relating to certain aspects of the laws on the use of languages in education in Belgium" v. Belgium (Belgian Linguistics Case), no. 1474/62; 1677/62; 1691/62;

1769/63; 1994/63; 2126/64 (23 July 1968)

Center for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.

47848/08 (17 July 2014)

Christine Goodwin v. The United Kingdom [GC], no. 28957/95 (11 July 2002)

Connors v. the UK , no. 66746/01 (27 May 2004)

Costello-Roberts v. the United Kingdom , no. 13134/87 ( 25 Mar 1993)

Dickson v. The United Kingdom [GC], no. 44362/04 (4 Dec 2007)

Dudgeon v. the United Kingdom, no. 7525/76 (22 Oct 1981)

E.B. v. France , no. 43546/02 (22 Jan 2008)

Engel and Others v. the Netherlands , no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72

(8 June 1976)

Evans v UK [GC], no. 6339/05 (10 Apr 2007)

Glor v. Switzerland , no. 13444/04 (30 Apr 2009)

Handyside v. The United Kingdom , no. 5493/72 (7 Dec 1976)

Hirst v. The United Kingdom (No. 2) , no. 74025/01 (6 Oct 2005)

Ilhan v. Turkey , no. 22277/93 (27 June 2000)

Karlheinz Schmidt v. Germany , no. 13580/88 (18 July 1994)

Karner v Austria, no. 40016/98 (24 July 2003)

Keegan v. Ireland , no. 16969/90 (26 May 1994)

Kiss v. Hungary , no. 38832/06 (20 May 2010)

Kozak v. Poland, no. 13102/02 (2 Mar 2010)

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Kroon and others v. The Netherlands , no. 18535/91 (27 Oct 1994)

Kurt v. Turkey , no. 15/1997/799/1002 (25 May 1998)

Marckx v. Belgium , no. 6833/74 (13 June 1979)

Markin v. Russia [GC], no. 30078/06 (22 Mar 2012)

Matter v. Slovakia, no. 31534/96 (5 July 1999)

McCann and others v. The United Kingdom , no. 18984/91 (27 Sep 1995)

Mennesson v. France , no. 65192/11 (26 June 2014)

Norris v. Ireland , no. 10581/83 (26 Oct 1988)

O'Donoghue v. United Kingdom , no. 34848/07 (14 Dec 2010)

Olsson v. Sweden , no. 10465/83 (24 Mar 1988)

Pretty v. The United Kingdom, no. 2346/02 (29 Apr 2002)

Prokopovich v. Russia , no. 58255/00 (18 Nov 2004)

Rees v. The United Kingdom, no. 9532/81 (17 Oct 1986)

S.H. and others v. Austria [GC], no. 19010/07 (19 Feb 2013)

Salgueiro da Silva Mouta v. Portugal , no. 33290/96 (21 Dec 1999)

Schalk and Kopf v. Austria , no. 30141/04 (24 June 2010)

Shtukaturov v. Russia , no. 44009/05 (27 Mar 2008)

Smith and Grady v. The United Kingdom, no. 33985/96; 33986/96 (27 Sep 1999)

Tyrer v. The United Kingdom , no. 5856/72 (25 April 1978)

Vallianatos and others v. Greece , no. 29381/09; 32684/09 (7 Nov 2013)

Winterwerp v. The Netherlands , no. 6301/73 (24 Oct 1979)

X. and Y v. The Netherlands, no. 8978/80 (26 Mar 1985)

X, Y and Z v. The United Kingdom , no. 21830/93 (22 Apr 1997)

Yaşa v. Turkey , no. 63/1997/847/1054 (2 Sep 1998)

Other Cases

Atala-Riffo et al. v Chile , IACHR Case 12.502 (17 Sep 2010)

3 Secondary Sources

Soft Law

CM/Rec(1999)4 Recommendation of the Committee of Ministers to member states on principles concerning the legal protection of incapable adults, Council of Europe (23 Feb

1999)

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CM/Rec(10)5 Recommendation of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity (31

Mar 2010)

CM/ResAP(05)1 Resolution of the Committee of Ministers on safeguarding adults and children with disabilities against abuse, Council of Europe (2 Feb 2005)

Dir-97/80/EC Council Directive on the burden of proof in cases of discrimination based on sex, Council of Europe (O.J. L14/6) (15 Dec 1997)

Dir-2000/43/EC Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (O.J. L180/22) (29 Jun 2000)

Dir-2000/78/EC Council Directive establishing a general framework for equal treatment in employment and occupation, (O.J. L303/16) (28 Nov 2000)

Literature

-

Arnardóttir, Oddný Mjöll: Non-Discrimination Under Art. 14 ECHR - The Burden of

Proof, Scandinavian Studies In Law, 2007, <http://www.scandinavianlaw.se/pdf/51-1.pdf>

(accessed 19 Nov 2014)

Belton, Robert: Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice, Vanderbilt Law Review, 1981

Clifford, Jarlath: The UN Disability Convention and its Impact on European Equality Law,

The Equal Rights Review Volume 6, 2011

Harris, David et al: Law of the European Convention on Human Rights, 2 nd

Edition,

Oxford University Press, 2009

Kilkelly, Ursula: The right to respect for private and family life. A guide to the implementation of Art. 8 of the European Convention on Human Rights, Human Rights

Handbooks, No. 1, 2001

Van Dijk, Pieter et al: Theory and Practice of the European Convention on Human Rights,

3 rd Edition, Kluwer Law International, 1998

Miscellaneous

Commissioner for Human Rights, ‘Who Gets to Decide’, CommDH/Issue Paper 2012(2) < https://wcd.coe.int/ViewDoc.jsp?id=1908555> (accessed 10 Nov 2014)

Council of Europe: Medically assisted procreation and the protection of the human embryo comparative study on the situation in 39 states. Cloning comparative study on the situation in 44 states . CDBI/INF (98)8 <http://www.coe.int/> (accessed 15 Nov 2014)

ECHR Online: Art. 8 ECHR . Human Rights and Fundamental Freedoms in Europe, n.d. < http://echr-online.com/art-8-echr/introduction> (accessed 19 Nov 2014)

7(20)

European Union Agency for Fundamental Rights: Access to justice in Europe: an overview of challenges and opportunities , n.d. < http://fra.europa.eu/> (accessed 10 Nov

2014)

Lowe, Nigel: A study into the rights and legal status of children being brought up in various forms of marital or non-marital partnerships and cohabitation. A Report for the attention of the Committee of Experts on Family Law , Document (CJ-FA (2008)5).

Prepared by the Secretariat of the Directorate General of Human Rights and Legal Affairs,

2008 < http://www.coe.int/> (accessed 16 Nov 2014)

LIST OF ABBREVIATIONS

Art.

CRPD

Article(s)

Convention on the Rights of People with Disabilities

ECHR

EU

IVF

European Convention on Human Rights

European Union

In Vitro Fertilization

UN

UR

United Nations

Utopin Republic

4 ADMISSIBILITY OF THE APPLICATION

1.

As a High Contracting Party, the UR is compelled to observe its obligations under the

ECHR and all existing Protocols to the Convention. The Court guarantees the observance of the Contracting Parties’ duties by examining and rendering judgment on applications concerning violations of the Convention

1

.

2.

Individual applications meeting the requirements set out under Art. 34 and 35 are admissible for consideration on the merits before the Court. The Applicants in this case, B.N. and K.N. represented by an Utopin NGO, submit that the Court is competent to consider the application on its merits, as it satisfies all requirements prescribed by Art. 34 and 35.

Locus Standi under Art. 34

3.

Only persons who have attained victim status as stipulated by Art. 34 have standing before the Court. Persons that are directly affected by 2 or have a personal and specific link 3 with a person directly affected by an act or omission by a Contracting Party are considered

1 Article 19 of the ECHR.

2 Amuur v. France, §36.

3 See, e.g., Kurt v. Turkey ; Yaşa v. Turkey ; McCann and others v. The United Kingdom.

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(in)direct victims

4

. Individual applications lodged in accordance with Rule 45(3) of the Rules of Court may be presented through a representative

5

.

4.

The Applicants submit that they are victims of violations by the UR of their rights and freedoms set forth in the Convention. The refusal of the UR to recognise the valid marriage certificate issued by Foretia, a Contracting Party to the Convention and all existing Protocols to the Convention, and the consequent decisions by the Utopin judiciary in April and July

2014 directly affects the lives of B.N. and K.N., depriving the Applicants from exercising their rights and freedoms as guaranteed under Art. 14 in conjunction with Art. 8 and 12, and

Protocol 12. The unjustified differential treatment that the Applicants have received from the

UR on the prohibited ground of sexual orientation and the awarding of legal guardianship of

K.N. to K.N.’s estranged parents, who have not carried out the K.N.’s manifested will, directly affects the Applicants’ right to respect for private and family life and right to marry.

5.

Furthermore, the Applicants submit that this application is lodged in accordance with the Rules of Court, allowing for representation by the Utopin NGO as B.N. has authorized the NGO to act on behalf of both Applicants due to K.N.’s physical inability.

6.

If the Court finds that B.N. cannot provide authorization on behalf of K.N., the

Applicants submit that the Court should take into consideration the exceptional circumstances of the case, as The Court has done in recent decisions

6

. The Court has held that under Rule

45(3), “special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves” 7

.

7.

For the reasons stated above, the Applicants submit that they have locus standi before the Court as the requirements under Art. 34 have been met.

Admissibility criteria under Art. 35

8.

Under Art. 35, applications concerning violations of the ECHR must be filed within six months from the date on which the final decision was taken, after the exhaustion of domestic remedies. Additionally, applications may not be anonymous, redundant or constitute an abuse of the right of application. Moreover, an applicant must show that it has suffered a significant disadvantage by an act or omission by a Contracting Party.

4 Harris et al (2009), p. 797-799.

5 See Rule 36 of the Rules of Court of the ECtHR.

6 Ilhan v. Turkey, §51; Cardot v. France , §34; Center for Legal Resources on behalf of Valentin Câmpeanu v.

Romania , §96 and Akdivar and other v. Turkey , §69.

7 Center for Legal Resources on behalf of Valentin Câmpeanu v. Romania , §113 and Winterwerp v. The

Netherlands , §60.

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9.

The Applicants submit that this application meets all requirements set out under Art. 35.

10.

The application has been filed within six months of the decisions of the Utopin judiciary in April and July 2014.

11.

Notwithstanding that the rule of exhaustion under Art. 35 (1) is not absolute and its application shall take into account the personal circumstances of the Applicants 8 , both B.N. and K.N. have exhausted all domestic remedies concerning the decisions of the Utopin judiciary, as the Utopis Court of Appeal’s decision fining B.N. for disrespect of a court order and the UR’s Supreme Court decision rejecting B.N.’s maternity and legal guardianship of

K.N in favour K.N.’s estranged parents are final.

12.

The Applicants assert that they were not required to exhaust domestic remedies concerning the non-recognition of their marriage in the UR. As mentioned above, the rule of exhaustion is not absolute and its application and “must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate” 9

. Given the political and legal context of non-recognition of same-sex unions in the UR, the Applicants submit that seeking a judicial remedy in the present case would have been ineffective or futile

10

.

13.

The application, lodged by identifiable Applicants that have not abused the right of application, does not concern a case that has been decided on by the Court or by another international body.

14.

The Applicants have suffered a significant disadvantage because of the violations by the UR. B.N. is ordered to pay a considerable fine and a substantial amount in damages.

Furthermore, the rejection of B.N.’s maternity and legal guardianship of K.N. restricts B.N.’s the exercise of her parental rights and spousal rights concerning access to K.N. in the hospital as well as authorization to carry out K.N.’s manifested will, which has been disregarded by the estranged parents of K.N.

15.

For the reasons stated above, the Applicants submit that the application meets the admissibility criteria under Art. 35 and is therefore admissible, granting the Court competence to examine and render judgement on the merits of the application.

8 Akdivar and other v. Turkey , §69.

9 Aksoy v. Turkey, §53.

10 Aksoy v. Turkey, §52 and Akdivar and other v. Turkey, §67.

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MERITS OF THE CASE

5 Violation of Art. 14 in conjunction with Art. 12 and 8

5.1 Applicability of Art. 14

16.

Persons within the jurisdiction of a Contracting Party may exercise the rights and freedoms guaranteed by the Convention without discrimination on the non-exhaustive list of grounds set out under Art. 14

11

. Due to the complementary nature of Art. 14, the prohibition on discrimination applies to claims that fall within the scope of a right or freedom guaranteed by the Convention.

17.

Discrimination is established by the Court’s objective justification test 12

.

Discrimination is found if there is a difference in treatment between individuals in a similar situation, which has no objective or reasonable justification. Differential treatment is then discriminatory if it does not pursue a legitimate aim and there is no reasonable relationship of proportionality between the differential treatment of persons in similar situations and the aim pursued by the Contracting Party

13

.

18.

Although not described under Art. 14, the Court has explicitly recognised sexual orientation as a serious ground of discrimination under Art. 14. Differential treatment on the ground of a person’s sexuality 14

is prohibited and only justifiable by stating particularly weighty reasons for the differential treatment

1516

.

19.

The Applicants submit that the refusal of the UR to recognise the valid Foretian marriage certificate and the consequent decisions by the Utopin judiciary on the ground of the Applicants’ sexual orientation are discriminatory and therefore prohibited, restricting the

Applicants’ right to marry under Art. 12 and right to respect for private and family life under

Art. 8 respectively. The application of the prohibition of discrimination set out under Art. 14 in conjunction with Art. 12 and 8 follows the Court’s consistent approach in previous case law 17 .

11 Engel and Others v. the Netherlands, § 72.

12 Case "relating to certain aspects of the laws on the use of languages in education in Belgium" v. Belgium.

13 Karlheinz Schmidt v. Germany, § 24.

14 Salgueiro da Silva Mouta v. Portugal , §28.

15

Karner v. Austria, § 37.

16 X. and others v. Austria, §99.

17 Salgueiro da Silva Mouta v. Portugal ; Karner v Austria; O'Donoghue v. United Kingdom and E.B. v. France.

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20.

Men and women of a marriageable age have a right to marry and to found a family under Art. 12. This right may be qualified by the national laws of Contracting Parties, insofar that national laws do not restrict or reduce the exercise of Art. 12 to the extent that the very essence of this right is impaired 18 . Although the text of Art. 12 suggests a narrow reading, the

Court has noted that the Convention is a living instrument that must be interpreted in light of present-day conditions 19 , observing that the inability of a couple to conceive or parent a child cannot be regarded as per se removing the right to marry 20 . Notably, this Court no longer considers that the right to marry enshrined in Art. 12 must in all circumstances be limited to marriage between two persons of the opposite sex

21

.

21.

In light of the progressive and more inclusive developments relating to rights conferred on same-sex couples, the Applicants posit that at the present time a European consensus regarding same-sex marriage is emerging and the Court is now able to perceive a convergence of standards relating to same-sex marriage, as evidenced by the legal recognition of same-sex marriages or unions in 23 of the 47 countries of the Contracting

Parties. Considering the aforementioned, the Court has consistently adopted the doctrine of evolutionary interpretation. The Court therefore need not focus on the notion of gender as a prerequisite for the applicability of Art. 12, but rather on the evolving attitude of Contracting

Parties towards same-sex marriages and the effectiveness of the Convention. As a result, the

Contracting Parties’ margin of appreciation on recognising same-sex marriages should be narrow.

22.

If the Court is not persuaded by the argument as posited in the paragraph above, the

Applicants assert that the lack of European consensus in this matter is irrelevant, as “such considerations are only a subordinate basis for the application of the concept of the margin of appreciation” 22 . As noted by the Court in Hirst v. The United Kingdom , “even if no common

European approach to the problem can be discerned, this [the missing consensus] cannot in itself be determinative of the issue”.

23

The fact that hitherto only 11 of 47 countries of the

Contracting Parties allow same-sex marriage does not grant the UR such a margin of appreciation as to refuse recognising the valid Foretian marriage certificate of the Applicants.

18 Rees v. The United Kingdom, §50.

19 Tyrer v. The United Kingdom , §31 and Kozak v. Poland , §98.

20 Christine Goodwin v. The United Kingdom , §98

21 Schalk and Kopf v. Austria , §61.

22 Schalk and Kopf v. Austria , §97, Joint dissenting opinion of judges Rozakis, Spielmann and Jebens, in Schalk and Kopf, point 4.

23 Hirst v. The United Kingdom (No. 2), §81.

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5.3 Applicability of Art. 14 in conjunction with Art. 12

23.

The Applicants thus submit that the UR’s refusal to recognise the valid Foretian marriage certificate amounts to differential treatment on the particularly serious ground of the

Applicants’ sexual orientation, deserving intensive scrutiny from the Court under Article 14

24

.

24.

The UR’s refusal to recognise the valid Foretian marriage certificate does not pursue a legitimate aim and has no reasonable relationship of proportionality between the differential treatment between different-sex couples that are able to exercise the right to marry under Art.

12 and same-sex couples and the aim pursued by the UR, as evidenced by the lack of any express mention in the UR’s domestic law.

25.

For the reasons stated above, the Applicants submit that the UR’s refusal to recognise the valid Foretian marriage certificate amounts to prohibited discriminatory differential treatment on the particularly serious ground of the Applicants’ sexual orientation, thereby violating Art. 14 in conjunction with Art. 12.


26.

The Applicants submit that the Court may examine the present case of discriminatory differential treatment of parental rights on the ground of sexual orientation

25

under Art. 14 taken in conjunction with Art. 8

26

.

27.

The Court has stated in Schalk and Kopf v. Austria that the relationship of “a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would”

27

. In light of this conclusion, the Applicants submit that the facts of the present case are within the scope of Art.

8, allowing the present case to be examined under Art. 14 taken in conjunction with Art. 8.

5.4.2 Unlawful differential treatment regarding the recognition of the relationship

28.

The Applicants submit that the absence of any form of legal recognition of the

Applicants’ relationship within the Utopin Republic’s legal system constitutes discriminatory differential treatment on the ground of sexual orientation.

29.

The Applicants stress that there is no form of legal recognition for the valid Foretian marriage certificate under Utopin law, in contrast to different-sex couples that have the right to marry. Judges Rozakis, Spielmann and Jebens stated in their dissenting opinion in Schalk and Kopf v. Austria that a State has a “positive obligation to provide a satisfactory framework,

24 Alekseyev v. Russia , §§26-27.


26 See Salgueiro da Silva Mouta v. Portugal , §28; Karner v. Austria and E.B. v. France .

27 Schalk and Kopf v. Austria, §94.

13(20) offering the Applicants, at least to a certain extent, the protection any family should enjoy”

28

.

This is echoed by Council recommendation 2010(5)

29

. Hitherto, no such framework is provided for same-sex couples in the UR.

30.

The Applicants further stress the particular importance of legal recognition of the valid

Foretian marriage certificate, as the non-recognition has far-reaching consequences for the

Applicants’ family following K.N.’s accident. The rejection of B.N.’s maternity and legal guardianship of K.N precludes the community of property for unmarried couples in a domestic partnership, resulting in B.N.’s inability to access K.N.’s bank account.

31.

Although justified differential treatment is allowed under Article 14, the Applicants assert that the non-recognition of same-sex couples does not protect or improve the lives of different-sex couples in the UR. Even if the protection of traditional families is claimed as a legitimate aim, the non-recognition of the Applicants’ valid marriage certificate is not a proportional means to achieve such an aim.

32.

For the reasons stated above, the Applicants submit that the UR has violated Art. 14 in conjunction with Art. 8.

5.4.3 Unlawful differential treatment with regards to motherhood

33.

B.N. submits that the rejection of her maternity constitutes prohibited discriminatory differential treatment.

34.

The Applicants submit that Art. 14 in conjunction with Art. 8 are violated on the ground of sexual orientation. The Utopin Civil Code allows for IVF for married and single persons. If B.N. had been a single person undergoing IVF, B.N.’s maternity would have been established by birth, following the mater semper certa est principle.

35.

The UR, which has the burden of proof, has not presented any objective and reasonable justification for the prohibited discriminatory differential treatment

30

.

5.4.4 Disproportionate effect of seemingly equal legislation with regards to legal guardianship

36.

It has been noted that seemingly equal legislation in a Contracting Party may have disproportionate effects on marginalized people vulnerable to discrimination. These persons need protection from these disproportionate effects. The Applicants request the Court to determine whether the UR has provided sufficient protection

31

.

28 Schalk and Kopf v. Austria , Joint Dissenting Opinion of Judges Rozakis, Spielmann and Jebens, §4.

29 CM/Rec(10)5, §25.

30 Belton (1981), p. 1205; Dir-97/80/EC, Preamble, §17; Dir-2000/43/EC Art. 8; Dir-2000/78/EC, Art. 10 ;

Arnardóttir (2007), p. 17.

31 Markin v. Russia , §126

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37.

In the present case, the Applicants submit that the next of kin principle has a disproportionate effect. If the Applicants had been a same-sex couple, the valid marriage certificate would have been recognised by the UR. Consequently B.N. would have been appointed as K.N.’s legal guardian, ensuring that B.N. would have taken K.N.’s will into account while acting on her behalf and protecting the wellbeing of the Applicants’ children.

The Applicants submit that the rejection of B.N.’s legal guardianship of K.N. violates Art. 14 in conjunction with Art. 8.

38.

Furthermore, by granting legal guardianship to K.N.’s estranged parents, B.N. has been denied access to their family income. Because of the lack financial resources, B.N. faces imminent eviction from her home. The Applicants submit that the UR has breached its obligations to respect B.N.’s right to respect for home under Art. 8, by failing to provide protection to B.N. The Applicants underline that ownership is not a condition of the right to home

32 , as demonstrated in the Court’s

Prokopovich v. Russia judgment, in which the Court held that the flat rented by the Applicant’s partner was to be considered her home

33

.

6 Violation of Art. 12 taken alone

39.

The Applicants submit that if the Court does not wish to consider this case under Art.

12 in conjunction with Art. 14, the non-recognition of the Applicant’s marriage may still be considered under Art. 12

34

.

7 Violations of Art. 8 taken alone

7.1 Scope of Art. 8

40.

Art. 8 guarantees the right to respect for private and family life. In the present case, the

Applicants submit that the UR has violated the Applicants’ right to respect for private and family life.

41.

Noting the incapability of an exhaustive definition for the right to respect private life 35 ,

The Court has held that sexual orientation and activity concern an intimate aspect of private life 36 .

42.

The right to respect for family life has been interpreted broadly by the Court, providing that Contracting Parties have a negative and positive obligation from interfering with the

32 Harris, O’Boyle and Warbrick (2009), p. 380.

33 Prokopovich v. Russia , § 108.

34 See, mutatis mutandis , Schalk and Kopf v. Austria .

35 Costello-Roberts v. the United Kingdom , §36.

36 Dudgeon v. the United Kingdom, §52.

15(20) right to respect for family

37

. Family life is then no longer solely attached to marriage, encompassing other de facto family ties

38

, as the Court notes the importance of social over biological ties

39

. Understanding that there is not only one way to lead and live one’s private and family life

40

, the Court further acknowledges that same-sex couples are entitled to enjoy

“‘family life’ for the purposes of Art. 8” if they live in a “stable de facto partnership” 41 .

43.

Art. 8(2) sets out the conditions that must be satisfied to allow a Contracting Party to lawfully interfere with the rights as guaranteed under Art. 8(1). Consequently, interferences in accordance with the law, that pursue a legitimate aim and that are necessary in a democratic society are permitted under this article.

44.

The Applicants submit that the decisions by the Utopin judiciary violate the Applicants’ right under Art. 8 as the requirements prescribed by Art. 8(2) have not been satisfied.

7.2 Supreme Court Decision rejecting B.N.’s Maternity

45.

Considering the facts in this case, B.N. submit that de facto family ties between the

Applicants and their children exist, thus putting the present case within the scope of the right to respect for family life enshrined in Art. 8. The Applicants decided to have children, undergoing the IVF process together. B.N. has taken on all parental responsibilities since she gave birth to them. Furthermore, the Applicants have been and are in an on-going, stable relationship, having lived together for several years prior to entering into a legally recognised marriage in Foretia.

46.

B.N. stresses that the Supreme Court’s decision dismissing her maternity of the children unlawfully interferes with her right to respect family life. The interference by the

Supreme Court decision of July 2014 was not in accordance with the Utopin Civil Code, establishing motherhood through the fact of birth. Having a legal basis, the Utopin Civil

Code provision concerning the establishment of motherhood is sufficiently clear and precise.

Although the Utopin judiciary may establish motherhood by court judgment, B.N. underlines that the judgment in which the Applicant’s maternity was dismissed amounts to a contra legem decision.

37

Airey v. Ireland , §32; Marckx v Belgium , §31; X and Y v. The Netherlands, §23.

38 Marckx v. Belgium , §31; X, Y and Z v. The United Kingdom , §36; Keegan v. Ireland , §44; Kroon and others v.

The Netherlands , §30 and Schalk and Kopf v. Austria , §91.

39 X, Y and Z v. The United Kingdom; O’Boyle & Warbrick (2009), p. 372.

40 Kozak v. Poland , §98.


16(20)

47.

If the Court finds that the Supreme Court’s decision is in accordance with the Utopin

Civil Code, the Applicants’ submit that the decision was not necessary in a democratic society. The Court holds that an interference corresponding to a pressing social need that is proportionate to the legitimate aim pursued in a given case is considered to be necessary in a democratic society 42 . The Contracting Party enjoys a certain margin of appreciation in assessing such necessity and proportionality, as national authorities are considered to be in a better position than the international judge to evaluate the needs of society 43 .

48.

This discretion is not absolute, relying on a common standard among the Contracting

Parties to the Convention

44

. In the event of a common ground, the Contracting Party cannot maintain that there was a pressing social need for the measure to be taken, thereby restricting the Contracting Party’s margin of appreciation 45

.

49.

The Applicants point out that there is significant consensus among European States with regard to the establishment of motherhood by the fact of birth. In a research conducted by the Council of Europe, it was observed that legal motherhood is determined by the fact of birth in all of the 28 States surveyed

46

. Another study by the Council of Europe on medically assisted reproduction shows that in every State where the study was conducted the woman giving birth is considered the mother of the child, instead of the woman who donated the ovum

47

.

50.

As a result of the common European standard ascribing to the mater semper certa est principle on motherhood, the rejection of B.N.

’ s maternity is not necessary in a democratic society, thus restricting the UR’s margin of appreciation.

51.

The Contracting Party’s margin of appreciation is further restricted when an important aspect of a person’s existence or identity is at stake 48

. The Court has held that an essential facet of an individual’s identity is at stake when the legal relationship between parent and child is concerned 49 . Here, the lack of recognition of parenthood may not undermine a child’s sense of security within the family 50 .

52.

Although the Court did not find a violation of Art. 8 in its Mennesson v. France and X,

Y and Z v. Austria decisions, the factual circumstances were considered. In these cases, the

42 Olsson v. Sweden, §67.

43 Handyside v. The United Kingdom , §48.

44 O’Boyle & Warbrick (2009), p. 352.

45 Dudgeon v. The United Kingdom , §60; Norris v. Ireland , §46 .

46 Lowe, Nigel (2008)

47 Council of Europe (1998) CDBI/INF (98)8

48 S.H. and others v. Austria , §94.

49 Mennesson v. France , §80.

50 X, Y and Z v. The United Kingdom , §45.

17(20) lack of legal recognition of parenthood did not prevent the Applicants from enjoying family life

51

. The factual circumstances of those cases cannot be applied analogously to the present case. The Supreme Court’s rejection of B.N.’s maternity by establishing K.N.’s parenthood of the children must be seen in conjunction with the legal guardianship of K.N.’s parents, who have clearly condemned the Applicants’ same-sex marriage. In the tragic but likely event of K.N.’s death, K.N.’s parents will be able to contest legal guardianship of the children, thereby undermining the children’s security within their family consisting out of

B.N. and the children she gave birth to.

53.

The Applicants submit that the rejection of B.N.’s maternity violates her right to respect for family life, as there is no justification for this interference as prescribed under Art.

8.

7.3 Legal guardianship of K.N.

54.

The parents of K.N. are her legal guardians. Legal guardianship was awarded to K.N.’s parents through the next of kin principle. Consequently, K.N.’s consent for the artificial insemination procedure was withdrawn on her behalf by her estranged parents. K.N.’s parents also ended financial support to B.N on K.N.’s behalf. Additionally, K.N.’s parents sued B.N. for legal guardianship of the children born out of the Applicants’ relationship. Considering these circumstances, it is clear that K.N.’s parents have blatant disregarded for K.N.’s clearly manifested will and right to respect private and family life, as evidenced by K.N. paying for the artificial insemination procedure, K.N.’s signature on the artificial insemination form and the valid Foretian marriage between the Applicants.

55.

The UR has failed to provide the protection that K.N. derives from Art. 8. The UR has neglected its positive obligation under the Convention to protect rights guarenteed under Art.

8 52 by failing to ensure that K.N.’s appointed legal guardians take the Applicant’s will into account when making decisions on her behalf. The Court’s case law indicates that where an important individual right is at stake and an Applicant has endured great disadvantage, the

Contacting Party may have a positive obligation to ensure the rights protected by Art. 8 in the event that a fair balance between an individual’s interests and the general community’s interest have not been struck

53

. Legal capacity and the ability to make choices are regarded as

51 Mennesson v. France , §92; X, Y and Z v. The United Kingdom , §§48-50.

52 Airey v. Ireland , §32; Marckx v Belgium , §31; X and Y v. The Netherlands, §23.

53 Kilkelly (2001).

18(20) the very essence of what it means to be human

54

. Considering the general interest of the community and K.N.’s interests in the present case, the Applicants assert that no fair balance has been struck. The Applicants submit that the UR has a positive obligation to safeguard the

K.N.’s right to respect for private life.

56.

Member States of the Council of Europe have adopted the Convention on Human

Rights and Biomedicine

55

and the 1999 Recommendation

56

to protect the rights of persons who are not able to give their consent in certain medical procedures. Although this

Convention focuses mainly on the purpose of medical consent, the Applicants submit that the object and purpose of this Convention are relevant to this case.

57.

Art. 6 of the Biomedicine Convention stipulates that adults who are not able to consent must not be ruled out completely. The Biomedicine Convention emphasizes the importance of taking individuals’ opinion into account to preserve their autonomy. Notably, the

Biomedicine Convention also stipulates that the intervention by the legal guardian has to be for the direct benefit of the person

57

. Art. 9 of this Convention compels previously expressed wishes relating to medical intervention to be taken into account if individuals undergoing treatment are unable to express their wishes at the time of the intervention

58

. By allowing

K.N.’s parents to act on the Applicant’s behalf against her wishes, the UR does not comply with these principles.

58.

The Applicants would like to refer to the 1999 Council of Europe’s Recommendation

No. R(99)4, affirming that all decisions by legal guardians must be made as thoughtfully and humanely as possible and that the interests of that particular person should be given the paramount consideration

59

. The Recommendation also states that all decisions must be made whilst taking into account current or previous expressed wishes or desires of the adult 60 .

Failing to do so results in a violation of the right to respect for private life of K.N. under Art.

8. The decisions of K.N.’s estranged parents have had a tremendous impact on the physical and psychological integrity of the Applicant, which underlie her personal autonomy 61 .

59.

Lastly, the Applicants point out the UN Convention on the Rights of Persons with

Disabilities, ratified by the EU in 2010, concerning the problematic issue of legal

54 Commissioner for Human Rights, Issue Paper 2012(2).

55 Convention on Human Rights and Biomedicine (1997).

56 CM/Rec(99)4 (1999).

57 Convention on Human Rights and Biomedicine (1997), Art. 6.

58 Convention on Human Rights and Biomedicine (1997), Art. 9.

59 CM/Rec(99)4, Principle 8(1).

60 CM/Rec(99)4, Principle 9.

61 Pretty v. The United Kingdom , §61.

19(20) guardianship. This Convention has been deemed of particular importance in relation to the

ECHR, as the Court has commented on its significance in several cases, even in cases where a State has not signed the CRPD

62

. The ECHR has greatly broadened the scope of protection for persons with disabilities within the Council of Europe’s borders since the CRPD has entered into force 63 . The Court has emphasised that special consideration should be given to the particular needs of a marginalized group of persons

64

, such as people with mental disabilities who are unable to consent. It follows that the margin of appreciation of States in these cases is narrow, as people in such conditions are easy to exploit 65 . This reflects the aim of the CRPD, as it encourages States to install safeguards to prevent exploitation of adults who are in a position of vulnerability

66

.

60.

The Court has furthermore established that deprivation of legal capacity may amount to an interference falling within the scope of Art. 8

67

. The Applicants submit that in the present case, the decision of the Utopin judiciary rejecting B.N. as K.N.’s legal guardian greatly interferes with K.N.’s private life of K.N., without justification, thereby violating Art. 8.

7.4 Decision imposing a fine and damages on B.N. for carrying on with the insemination procedure

61.

The Applicants submit that the decision by the Utopolis Court of Appeal of April 2014 ordering B.N. to pay a considerable fine and substantial amount in damages to K.N. for disrespecting a court order violates the Applicants’ right to respect for family life under Art.

8. The Applicants stress that the fine imposed on B.N. forms an obstacle to the Applicants’ right to form a family.

62.

The Applicants’ relationship falls within the scope of the right to respect for family life under Art. 8. This right includes “the right to respect for their decision to become genetic parents” 68 . In the present case, the Applicants came to a consensual agreement to form a family together, as evidenced by the Applicants’ choice to conceive a child through artificial insemination with the use of a donor sperm. Hitherto there is no indication that K.N. wished to discontinue the procedure.

62 Glor v. Switzerland.

63 Clifford (2011), p. 11.

64 Connors v. the UK , §84.

65 Kiss v. Hungary , §42.

66 CM/ResAP(05)1, Art. 12(4) and Art. 16.

67 Matter v. Slovakia , §68 and Shtukaturov v. Russia , §83.

68 Dickson v. The United Kingdom [GC], §65.

20(20)

63.

The Applicants stress that the method of artificial insemination is the only possibility for the couple to procreate. The Applicants underline that discontinuing the procedure could have resulted in the destruction of the fertilised eggs. Considering K.N.’s current medical condition, discontinuing the procedure could have denied the Applicants the last chance of having a child together 69 . The Applicants further assert that “where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted” 70 .

64.

The Applicants submit that the Utopolis Court of Appeal’s decision violates Art. 8 by failing to protect the Applicants’ right to respect for their family life.

8 Violation of Art. 1 of Protocol 12

65.

Protocol 12 prohibits discrimination. Unlike Art. 14, Protocol 12 is not parasitic in nature and does not need to be applied in conjunction with other Convention rights.

Discriminatory treatment is prohibited as such.

66.

For the reasons stated above, the Applicants submit that there has been a violation of

Protocol 12 on the ground of sexual orientation. The discriminatory treatment in the form of the rejection of B.N.’s maternity and legal guardianship of K.N., and the refusal to recognise the valid Foretian marriage certificate have reaching consequences in the Applicants’ family life and private life. This differential treatment by the UR is deemed disproportionate and unlawful due to the far-reaching consequences and lack of objective or reasonable justification. Lastly, the disproportionate effects of the seemingly equal next of kin principle relating to legal guardianship amounts to discrimination in the present case.

JUST SATISFACTION

67.

The Applicants submit that the omission and acts of the UR violate their rights and freedoms protected by the Convention. If the Court decides that there has indeed been a violation of the Applicants’ rights, the Applicants request the Court to award just satisfaction to the Applicants, as provided for by Art. 41. In this case, just satisfaction will be considered the full reimbursements of all the costs and legal expenses incurred, as well as a reimbursement of the fine and damages that B.N. was ordered to pay to K.N. in domestic procedures.

69 See, mutatis mutandis , Dickson v. The United Kingdom [GC], §72.

70 Evans v UK [GC].

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