Resolution CM/ResDH(2009)80[1]
Execution of the judgment of the European Court of Human Rights
E.B against France
(Application No. 43546/02, judgment of 22 January 2008, grand Chamber)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment in this case, transmitted by the Court once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns a discrimination suffered by a homosexual person in proceedings aiming at the adoption of a child as her application for authorization to adopt a child was examined (violation of Article 14 combined with 8) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2009)80
Information about the measures to comply with the judgment in the case of
E.B against France
Introductory case summary
This case concerns discriminatory treatment suffered by the applicant in violation of her right to respect for her private life (violation of Article 14, combined with Article 8). She suffered this discriminatory treatment on account of her sexual orientation in the context of an application for authorisation to adopt a child.
The final rejection of her application in 1999 by the competent district authorities (President of the Conseil Général of the Jura, based on the recommendation of the district social services), confirmed by the administrative tribunals, was principally based on two elements: first, the attitude of her partner, in particular the lack of commitment on her part to the adoption plan, and second, the absence of a “father-figure” in the household.
The European Court found no discrimination with regard to the first ground for rejection (partner's attitude). In this respect, it underlined inter alia that where a male or female applicant, although unmarried, has already set up home with a partner, that partner's attitude and the role he or she will necessarily play on a daily basis in the life of the child joining the home require full examination in the child's best interests. The Court added that it would be surprising, to say the least, if the relevant authorities, having been informed of the existence of a de facto couple, pretended to be unaware of that fact when assessing the conditions in which the child would be given a home and its future life in that new home.
The Court however reached the opposite conclusion with regard to the second ground of rejection (absence of “father-figure”). According to the Court, this ground does not necessarily raise a problem in itself; but it was used in an excessive manner in the specific circumstances of the case, concerning adoption by a single person. In the Court's view, in the whole procedure the reference to the applicant's homosexuality was at least implicit and the influence of this element on the appreciation of the application was decisive (in particular the national authorities referred to the applicant's “lifestyle”. The refusal was delivered in the light of certain opinions expressed in a manner which revealed that the applicant's homosexuality was a determining factor, etc.). As a result, the applicant suffered a difference in treatment which the European Court concluded was discriminatory, as it was based on the applicant's sexual orientation. In arriving at this conclusion, it took into account the national law (Code civil) which authorised the adoption of a child by a single person but is mute as to the necessity of a referent of the other sex as well as the applicant's “undoubted personal qualities and aptitude for bringing up children” which was recognised by the authorities.
The Court noted that the two main grounds of rejection formed part of an overall assessment of the applicant's situation. For this reason, the Court considered that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds had the effect of contaminating the entire decision.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
10 000 euros
14 528 euros
24 528 euros
Paid on 06/03/2008
b) Individual measures
Without the authorisation which was not granted to the applicant in the proceedings at issue, adoption is legally impossible. The European Court granted the applicant just satisfaction in respect of non-pecuniary damage.
In view of the nature of the violation found by the Court, the execution of the judgment of 22 January 2008 does not imply that the applicant must receive the requested authorisation. It is her own choice to make use of the possibility of making a new application for authorisation to the competent Conseil Général (see General measures), and if she does so her application must be examined without any discrimination.
The applicant informed the Committee of Ministers that following the European Court's judgment, she lodged a new application for authorisation to adopt a child and that the authorisation has been once again refused, by decision of 26 January 2009. This refusal does not rely on the applicant's sexual orientation, which is acknowledged by the lawyer who is assisting her in the procedure. However, the applicant maintains that the grounds of rejection are fallacious and aimed at hiding the true reason of that rejection, namely her sexual orientation. She indicated that she had contested that decision before the administrative courts and that she lodged a complaint before the French High Authority against Discrimination and for Equality (Haute Autorité de Lutte contre les Discriminations et pour l'Egalité).
In this respect, the authorities underline, besides the fact that the new refusal to issue an authorisation is in any case not manifestly based on Ms. E.B.'s sexual orientation, that the applicant may contest this decision before the national administrative courts – which indeed she has done (the proceedings are pending). The administrative judges who apply the Convention directly, are well aware of the European Court's judgment of 22 January 2008, at all degrees of jurisdiction. The authorities conclude that the principles laid down by the Court in this judgment thus cannot be misjudged by the administrative courts in the examination of the complaints lodged by Ms. E.B.
II.General measures
Article 343-1 of the Civil Code provides that any single person over 28 may apply to adopt. French law therefore allows adoption by single persons, without taking their sexual orientation into account. Thus the law itself is not in question. It is important that applications for authorisation to adopt are treated by the competent authorities, under the control of the national judges, without any distinction based on the sexual orientation of the applicant, a distinction which is not authorised under the Convention.
Consequently, the judgment has been sent out to all the authorities competent in this field. Applying the Court's judgment directly, they will avoid similar violations.
First, the judgment has been sent out to the authorities competent to deliver authorisations to adopt a child. The European Court's judgment has been published on the Ministry of Interior's intranet site, in the Local Authorities' Legal Information Bulletin (Lettre d'information du droit des collectivités locales), in March 2008. In this way, all Préfectures have been informed of the judgment and they will ensure that it is duly taken into account by the Conseils Généraux (the Préfectures supervise the legality of local authorities' decisions and also give legal advice). Several specialised journals at the disposal of Conseils Généraux also published commentaries on the judgment, such as L'Actualité Sociale Hebdomadaire (ASH). Thus, the Conseils Généraux legal departments, implementing their duty of legal supervision, can ensure that the field agents and in particular those responsible for dealing with applications for authorisation to adopt a child are fully informed of the latest developments.
Furthermore, the report on adoption in France requested by the French President in October 2007 and delivered on 19 March 2008 by Jean-Marie Colombani, refers to the judgment (page 191 of the report) and explains its content in details. This ensured wide publicity for the attention of the departments in charge of adoption matters in the Conseils Généraux. Finally, the Directorate General of Social Action - Ministry of Health, confirmed that it transpires from the regular contacts held with the Conseils Généraux that the E.B. judgment is now well known by the departments in charge of adoption matters.
Secondly, the judgment was sent out to courts competent to rule on the legality of refusals to deliver authorisation. The European Court's judgment has been brought to the attention of the Conseil d'Etat and of administrative tribunals and courts of appeal via their intranet sites, with a view to ensuring the broadest possible dissemination of the judgment amongst administrative judges.
III.Conclusions of the respondent state
The government considers that all possible measures have been taken, that the general measures will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 30 September 2009 at the 1065th meeting of the Ministers’ Deputies
Full & Egal Universal Law Academy