Chapin and Charpentier v France
Application No. 40183/07
European Court of Human Rights
A Nussberger P & J; K Hajiyev, E Mose, A Potocki, F Vehabovic, S O’Leary & M Mits, JJ
September 6, 2016
Reported by Faith Wanjiku and Betty Nkirote
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International Law-law of treaties-European Convention on Human rights-right to marry-right to marry by same sex couples-where the applicants who were of the same sex submitted a marriage application to the civil registry department of Bègles municipal council-where the public prosecutor objected to the marriage of the applicants-where the mayor of Bègles performed the marriage between the applicants and made an entry to that effect in the register of births, marriages and deaths-where the public prosecutor sought the annulment of the applicants’ marriage before Bordeaux tribunal de grande instance-where the court annulled the applicants’ marriage-whether the limitation of the right to marry to opposite sex couples infringed on the applicant’s right to marry protected under article 12 of the Convention-European Convention on Human Rights, 1953 article 12.
International Law-law of treaties-European Convention on Human Rights-prohibition of discrimination-discrimination on the basis of sexual orientation-where the applicants challenged the denial of their right to marry as same sex couples-where the applicants claimed discrimination on the basis of their sexual orientation-whether the limitation of the right to marry to opposite sex couples amounted to discrimination of the applicants on the basis of their sexual orientation-European Convention on Human Rights, 1953 article 14.
Brief facts
The applicants lodged the instant application with the European Court of Human Rights on September 6, 2007 challenging the denial of their right to marry as same sex couples.
In May 2004, the applicants submitted a marriage application to the civil registry department of Bègles municipal council. Following the application, the municipal civil registrar published the banns of marriage. The public prosecutor at the Bordeaux tribunal de grande instance served notice of his objection to the marriage on the municipal civil registrar and the applicants. Despite the objection, the mayor of Bègles performed the marriage ceremony and made an entry to that effect in the register of births, marriages and deaths.
On June 22, 2004 the public prosecutor brought proceedings against the applicants in the Bordeaux tribunal de grande instance seeking to have the marriage annulled. On 27 July 2004 the court annulled the applicants’ marriage and ordered its judgment to be recorded in the margin of their birth certificates and the marriage certificate. The Bordeaux Court of Appeal upheld the judgment. Thereafter, the applicants appealed on points of law to the Court of Cassation which on March 13, 2007 dismissed their appeal.
Consequently, the applicants brought the instant application. They based their application on articles 12 and 14 of the European Convention on Human Rights, 1953 (Convention). They argued that limiting marriage to opposite sex couples amounted to discrimination and infringed on their right to marry. They contended that they had been discriminated against on the basis of their sexual orientation contrary to articles 8 and 14 of the Convention.
Issues:
- Whether the limitation of the right to marry to opposite sex couples infringed on the applicant’s right to marry protected under article 12 of the Convention.
- Whether the limitation of the right to marry to opposite sex couples amounted to discrimination of the applicants on the basis of their sexual orientation.
Relevant provisions of the law
European Convention on Human Rights, 1953
Article 8- Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 in the interests of national security, public safety or the economic well-being of the country, 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.
Article 12- Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 14- Prohibition of discrimination
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.
Held
- Whilst the institution of marriage had undergone major changes since the adoption of the Convention, there was no European consensus on granting same sex couples the right to marry. Article 12 of the Convention applied to the applicant’s complaint but the question whether to allow same sex marriage was left to regulation by the national law of the contracting states. Article 12 of the Convention did not impose an obligation by the respondent government to grant same sex couples access to marriage.
- The law of May 17, 2013 had granted same sex couples right to marriage in France and therefore the applicants were free to marry.
- Under articles 8 and 14 of the Convention, states remained free to restrict marriage to opposite sex couples. There was a margin of appreciation for the states as regards to the exact status conferred by alternative means of legal recognition. At the relevant time, the applicants had the possibility of concluding a civil partnership.
- The present situation was distinguishable from the one in the case of Vallianatos and Others v Greece in which Greek law limited civil unions to opposite-sex couples and from the case of Oliari and Others v Italy in which Italian law did not provide any form of legal recognition of same-sex couples.
- The court was not required to give a detailed ruling on the differences between marriage and civil partnerships which generally corresponded to the trend observed in other member states. There was no evidence that the respondent state had exceeded its margin of appreciation. Accordingly, there was no violation of articles 8 and 14 of the Convention by the respondent state.
Application dismissed.
Relevance to Kenyan jurisprudence The Constitution of Kenya under article 45 limits marriage only to adults of opposite sex. It provides in this regard as follows:Article 45-Family
(1) The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.
(2) Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
Further, the Penal Code, Cap 63 Laws of Kenya (Penal Code) criminalizes unnatural acts under sections 162 and 163 in the following terms:
Any person who
(a)has carnal knowledge of any person against the order of nature; or
(b)has carnal knowledge of an animal; or
(c)permits a male person to have carnal knowledge of him orher against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years
163-Attempt to commit unnatural offences
Any person who attempts to commit any of the oences specied in section 162 is guilty of a felony and is liable to imprisonment for seven years.
Additionally, section 165 of the Penal Code provides for gross indecent practices between males. It states thus:
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
It follows that both sections 162 and 165 of the Penal Code criminalise male homosexual relationships. It is a matter of interpretation that the use of the words, “any person who has carnal knowledge of any person” “against the order of nature” in section 162 of the Penal Code may be construed to include female same-sex relationships as unnatural. This was the reasoning of justice W Ouko, SCJ in his dissenting opinion in the case of NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) (Constitutional and Human Rights) (24 February 2023) (Judgment) (with dissent - MK Ibrahim & W Ouko, SCJJ)Thus, the law in Kenya only recognizes opposite sex marriage. As demonstrated above, the Penal Code criminalizes same sex sexual acts. However, the law is silent on same sex marriages and there has not been litigation in regards to legalization/recognition of same sex marriages. This case is therefore relevant to Kenyan legal system as it could guide such other circumstances in future.