Johanna Westeson - The ICHRP

More documents

Recommendations

Info

espect for family life in Article 8. Given that the applicant had lived with her mother for nine years, a family life had been established between them. The refusal of entry to the applicant’s mother constituted an interference with the right to respect for the daughter’s family life under Article 8. However, this interference was found to be justified, as it was based on “the preservation of the Christian based monogamous culture dominant in [the] country,” taking into account the right of a contracting state to deny full recognition to polygamous marriages in conflict with their own legal order. Furthermore, the Commission established, all facts about United Kingdom immigration law and the general disapproval of polygamy in the country had been known to the applicant’s father when he chose to have his second wife join him. In conclusion, the Commission found no violation of Article 8 and declared the application inadmissible. Thus, the Commission acknowledged the family tie between the mother and daughter but did not legitimize polygamous families’ right to be together per se. States can limit the right of members of those families to reunify, on the basis of culture and morals. It is noteworthy that the Commission did not reach this conclusion through an analysis of women’s rights. Furthermore, the Commission used the argument that the father must have been aware of the legal situation in the United Kingdom when bringing his second wife. This, one could argue, is beside the point, since the rights of the father were not claimed to have been infringed upon. It was the daughter’s, and, as a consequence, her mother’s rights that potentially had been violated – and one can imagine that they had not been consulted before the father decided to choose that the second wife would join him. For these reasons, the case raises several human rights-related concerns. 3. European Union Council Directive 2003/86/EC on the right to family reunification 390 determines the conditions for the exercise of the right to family reunification by third country nationals who reside lawfully in the territory of a member states. Here, EU law allows member states to restrict the right to family reunification on polygamous grounds: The right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children; such compliance justifies the possible taking of restrictive measures against applications for family reunification of polygamous households. (para 11) 390 Adopted on 22 September, 2003. OJ L 251. 128
4. Domestic legislation In France, according to Article 147 of the French Civil Code, a second marriage cannot be entered unless the first has been dissolved. 391 Bigamy is a crime according to the Penal Code, sanctioned with imprisonment or fine. If the civil servant officiating the marriage is aware of the first marriage, he or she will also be subject to punishment. 392 In 1993, a law was passed that prohibited living in a polygamous household in France, regardless of whether the arrangement had been concluded legally in another country. The provisions about polygamy were part of a new immigration law, the so-called second Pasqua law. 393 According to this law, the issuance or renewal of a resident permit for an immigrant depends on the absence of polygamy. This means that only one wife of a French male resident and her children are allowed to enter France, in the context of family reunification. If a man brings in more than one wife, he will lose his residence permit. For polygamous families who were admitted before 1993, only the first spouse - that is, the wife who first benefited from the right to family reunification – can have her residence card renewed. The rights of the first spouse were clarified in a Government circular issued on 25 April 2000; she will be legally protected, and her resident permit will not be affected by the fact that she lives in a polygamous arrangement. 394 The other wives will receive temporary residence cards, until their status has been resolved (that is, until they either leave their husbands and establish separate households, or return to their home countries). Since 2003, parents of children with French citizenship (that is, children who were born in France) are no longer protected against deportation, if they live in polygamy. 395 Various commentators have criticized the demand for the so-called de-cohabitation of other wives than the first, pointing out that this leaves already vulnerable women in even more precarious situations. 396 A circular issued in 2001 provides for support and specific benefits to the de-cohabiting women, aiming at helping them obtain a certain level of autonomy. 397 Most notably, the circular provides for subsidized housing for the parting women. According to the United Kingdom Offences against the Person Act 1861, as amended, persons convicted of the crime of bigamy may be subject to imprisonment up to seven years (Section 57). This ban does not apply to non-citizens, if the second marriage has been contracted outside of England or Ireland. 391 Unofficial translation available. The Belgian (Art 147), Luxembourgian (Art 147) and Swiss (Art. 96) civil codes have exactly the same or very similar provisions. 392 Article 433-20 of the Penal Code. Unofficial translation available. 393 Law no. 93-1027 of 24 August 1993 on the regulation of immigration and on the conditions of entry, reception, and residency of foreigners in France. Available only in French. Information found in a report to Commission Nacionale Consultative des Droits de l’Homme, Etude et propositions: la polygamie en France, April 2006, available at http://www.annuaire-au-feminin.net/06-polygamieFH.html, visited on 12 December 2009. See also Consideration of sixth periodic report of France to CEDAW, 18, January 2008, available at http://www2.ohchr.org/english/bodies/cedaw/docs/CEDAWSR818.pdf, last visited on 12 December 2009. 394 Circular LIB/ETRB/RF/S of the Minister of the Interior, according to Commission Nacionale (2006), supra note 393. 395 Law No 2003-1119 of 26 November 2003 on the regulation of immigration, on residency of foreigners in France, and on nationality. Available only in French. 396 See, for example, Bertrand Bissuel, “Divorce, or Else…”, World Press Review, April 2002, available at http://www.worldpress.org/europe/0402lemonde.htm, last visited on 20 February 2010. 397 Circular DPM/AC/14/2001/358, relating to the lodgment of decohabiting women of polygamous marriages engaged in a process of autonomy. Minister of Employment and Solidarity, 10 June 2001. 129
Page 1 and 2:
SEXUAL HEALTH AND HUMAN RIGHTS: EUR
Page 3 and 4:
ACKNOWLEDGMENTS This report was wri
Page 5 and 6:
In choosing these eight topics, and
Page 7 and 8:
amputation, or arbitrary imprisonme
Page 9 and 10:
headquarters situated in Strasbourg
Page 11 and 12:
unfounded applications: the applica
Page 13 and 14:
margin. 18 This standard has been k
Page 15 and 16:
financial, and democratic supervisi
Page 17 and 18:
EU and the Euro as its currency. Th
Page 19 and 20:
3. Domestic legal systems As mentio
Page 21 and 22:
METHODOLOGY The WHO project on sexu
Page 23 and 24:
Because this report, and the projec
Page 25 and 26:
grounds for discrimination. Gender
Page 27 and 28:
assume large parts of her household
Page 29 and 30:
In Lustig-Prean and Beckett v. the
Page 31 and 32:
asis of family responsibilities (Ar
Page 33 and 34:
promote social justice and protecti
Page 35 and 36:
ground that the scheme did not cove
Page 37 and 38:
ut also to discrimination arising f
Page 39 and 40:
Many constitutions call for equalit
Page 41 and 42:
The three criminal provisions inclu
Page 43 and 44:
eassignment is defined broadly, ref
Page 45 and 46:
iv.4. Gender identity discriminatio
Page 47 and 48:
harassed workers out of their emplo
Page 49 and 50:
epealed accordingly, but the conten
Page 51 and 52:
and reactive) steps to protect the
Page 53 and 54:
features of sexual harassment have
Page 55 and 56:
harassment to make a claim against
Page 57 and 58:
4. Regional non-binding material Th
Page 59 and 60:
he or she he has “no disease caus
Page 61 and 62:
In other European countries, calls
Page 63 and 64:
Article 10 addresses reasons for pe
Page 65 and 66:
her country of origin and cannot re
Page 67 and 68:
compromised medical privacy or doub
Page 69 and 70:
whether or not the participants wer
Page 71 and 72:
uns contrary to EU non-discriminato
Page 73 and 74:
provision criminalizing sexual rela
Page 75 and 76:
2B. CRIMINALIZATION OF HIV TRANSMIS
Page 77 and 78: Swedish courts had determined that
Page 79 and 80: infected the women. In the lower co
Page 81 and 82: Several prosecutions of cases of HI
Page 83 and 84: unprotected sex), and can prohibit
Page 85 and 86: The case, when reaching the Court,
Page 87 and 88: material on the internet blurring,
Page 89 and 90: a balancing act on behalf of the le
Page 91 and 92: 4. Domestic legislation, case law,
Page 93 and 94: 5. Concluding remarks Given the sca
Page 95 and 96: 2. Council of Europe Jurisprudence
Page 97 and 98: leaves room for forced examinations
Page 99 and 100: 3A. SAME-SEX MARRIAGE, PARTNERSHIP,
Page 101 and 102: The Court made clear that there is
Page 103 and 104: extend the scope of this Convention
Page 105 and 106: violating the principle of non-disc
Page 107 and 108: held that the law was introducing a
Page 109 and 110: In France, registered partnership i
Page 111 and 112: eform. Thus, allowing for same-sex
Page 113 and 114: woman have the right to marry accor
Page 115 and 116: The law makes clear that the two pa
Page 117 and 118: opposite sex. While the Hungarian,
Page 119 and 120: In the European region, divorce is
Page 121 and 122: 5. Concluding remarks In Johnson, t
Page 123 and 124: concern that such legislation could
Page 125 and 126: exceptions: countries that have cho
Page 127: 3E. POLYGAMY/POLYGYNY 1. Introducti
Page 131 and 132: In relation to the above, it is rel
Page 133 and 134: In the European region, there are f
Page 135 and 136: United Kingdom, 414 the Court consi
Page 137 and 138: (2) Whoever completes an act of sex
Page 139 and 140: characteristics are important featu
Page 141 and 142: discrimination, whereas laws agains
Page 143 and 144: 2. Council of Europe Jurisprudence
Page 145 and 146: It is possible but not certain that
Page 147 and 148: When an application has been grante
Page 149 and 150: Case law: partnership rights for pr
Page 151 and 152: investigation and the provision of
Page 153 and 154: In a couple of decisions, the Europ
Page 155 and 156: very practical aspect of gender ide
Page 157 and 158: Case law: the right to respect for
Page 159 and 160: pathologizing the issue of transsex
Page 161 and 162: gender. Specific legal issues invol
Page 163 and 164: concerning their young child. Howev
Page 165 and 166: world, with work, health services,
Page 167 and 168: on repeated occasions from her husb
Page 169 and 170: Similarly, the European Commission
Page 171 and 172: a person who has been acquitted of
Page 173 and 174: [w]hoever, on repeated occasions or
Page 175 and 176: International human rights standard
Page 177 and 178: In M.C. v. Bulgaria, 523 the applic
Page 179 and 180:
With regard to the failure to effec
Page 181 and 182:
Italy offers another example in the
Page 183 and 184:
In Russia, the Supreme Court has pr
Page 185 and 186:
testimony of the victim in rape tri
Page 187 and 188:
number and passport details within
Page 189 and 190:
condemnation of immunity for marita
Page 191 and 192:
some regions have exempted from pen
Page 193 and 194:
The 2007 Council of Europe Conventi
Page 195 and 196:
European Social Charter and the Eur
Page 197 and 198:
takes place, or whether the prosecu
Page 199 and 200:
either to persons who were in fact
Page 201 and 202:
permanently changes them will be se
Page 203 and 204:
6. Concluding remarks European laws
Page 205 and 206:
event of police abuse, on the other
Page 207 and 208:
Greece illustrates this trend. In 2
Page 209 and 210:
(a) must treat the fact that the of
Page 211 and 212:
5E. HONOR CRIMES 1. Introduction Pr
Page 213 and 214:
making provision for penalties to b
Page 215 and 216:
that a decision of the family assem
Page 217 and 218:
(Article 62.2). Mitigation of the s
Page 219 and 220:
persons, regardless of what kind of
Page 221 and 222:
purpose of exploitation) (Art. 4a).
Page 223 and 224:
victims will be granted “standard
Page 225 and 226:
e guilty of an offence, if the traf
Page 227 and 228:
expanded. For example, a victim can
Page 229 and 230:
last decade, on regional as well as
Page 231 and 232:
sexual health services interacts wi
Page 233 and 234:
provide abortion services at a mini
Page 235 and 236:
Convention. These procedures, the C
Page 237 and 238:
5. Domestic legislation and case la
Page 239 and 240:
pregnant woman is disabled or dies
Page 241 and 242:
document the patient’s opportunit
Page 243 and 244:
Generally, it has been difficult to
Page 245 and 246:
2. to provide advisory and educatio
Page 247 and 248:
not anonymous) treatment even thoug
Page 249 and 250:
5. Concluding remarks It is difficu
Page 251 and 252:
information about contraceptive met
Page 253 and 254:
sex with women) is to provide insuf
Page 255 and 256:
a democratic society, the Court rei
Page 257 and 258:
3. European Union The issues of sex
Page 259 and 260:
eduction of sexual risks, the fight
Page 261 and 262:
5. Concluding remarks The European
Page 263 and 264:
conveyed via texts, images, and spe
Page 265 and 266:
images can be easily known from the
Page 267 and 268:
considered necessary in a democrati
Page 269 and 270:
3. European Union The Council of th
Page 271 and 272:
In 2008, the Criminal Justice and I
Page 273 and 274:
By contrast, in Baczkowski, the Cou
Page 275 and 276:
however, the dominance of criminali
Page 277 and 278:
Other legal regimes are more rights
Page 279 and 280:
The Assembly recommends Council of
Page 281 and 282:
Netherlands, when they had not prev
Page 283 and 284:
number. 896 As of late October 2009
Page 285 and 286:
offence only if it includes exploit
Page 287 and 288:
Zoning laws are determined by local
Page 289 and 290:
sexual intercourse, but other forms
Page 291 and 292:
sex workers (like other adults) hav
Page 293 and 294:
DOMESTIC Albania - Law no. 9669 of
Page 295 and 296:
Portugal - Law No 6/2001 of 11 May
Page 297 and 298:
APPENDIX II: TABLE OF CASES Within
Page 299 and 300:
- Gabrielle Defrenne v Société An
Page 302 and 303:
APPENDIX IV: SELECT BIBLIOGRAPHY Ha
Page 304:
STI AIDS Netherlands, “A Delicate
show all

Johanna Westeson - The ICHRP

Create successful ePaper yourself

Delete template?

Save as template?