Johanna Westeson - The ICHRP

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However, polygamous marriages do exist in many European countries and, regardless of principled positions against polygamy, there is a need to protect the rights of women and children who live in such arrangements. In practice, blanket bans against polygamy often leave women in a precarious place. The most emblematic area is immigration law. Rights become critical both with regard to women and children who have been admitted entry – but who have no protection under domestic laws on property, inheritance, etc – and those left behind in their home countries and who may face extreme stigma, discrimination, and poverty. The EU Directive on family reunification illustrates this dilemma. It explicitly states that it is with concern for the rights of women and children that restrictive measures can be taken against reunification on polygamous grounds. However, while the principled statement is commendable, the Directive will be implemented in a world where polygamous families exist. The question may be legitimately posed whose rights are promoted by such a ban; it hardly benefits the wives who may be left without financial support in the face of society’s scorn in their home countries, or the children who will be separated from one of their parents. For these reasons, the United Kingdom serves as an interesting example in the region. While having the same ban on polygamy and family reunification for polygamous families as other European states, the British state allows such families welfare benefits and thereby a certain level of social protection. From another perspective, strong positions against polygamy such as those that can be found in Europe presuppose that women never can consent to polygamy. It is true that complicated and possibly structural power dynamics are involved in arrangements such as polygamy, which may render concepts such as consent fictive. Nevertheless, from a rights perspective, policies that give no room for adult consent should be examined closely. 3F. TESTS AND CONDITIONS PLACED ON MARRIAGE 1. Introduction 407 A health and rights approach has implications for state practices (de jure or de facto) that exclude adults from marriage. Mandatory, pre-marital health tests (to determine HIV status, for example) or other tests of physical characteristics (virginity tests, which may be privately administered but tolerated by the state) are unjustified interferences with privacy and impede core rights to bodily integrity. Categorical exclusion from marriage on these or other grounds linked to health and physical characteristics (disability, for example) violates principles of non-discrimination. 408 Pre-marital HIV-tests also serve to further stigmatize the HIV-positive community, and lead to serious discrimination against HIV-positive persons who, in effect, cannot marry. This not only violates the right to access marriage as such, but also infringes upon a multitude of rights and privileges attached to marriage by law in most countries, such as the right to health insurance. 407 Drawn in part from general WHO chapeau text elaborated by Alice M. Miller and Carole S. Vance. 408 Advocacy of mandatory premarital HIV-testing as a way of protecting women’s health and rights in marriage is misplaced; interventions are better directed to supporting women’s full and free decision to marry, or when and under what conditions to have sex within marriage. 132
In the European region, there are few examples of countries that put conditions on marriage other than age-limits, prohibition of close relatives to marry, and restrictions of marriage for same-sex couples (as addressed above). Mandatory medical tests before marriage are uncommon. Here will only be mentioned Russia, and other former Soviet republics, where the practice has been expressly outlawed. This is a response to a past practice that was found to be discriminatory and in violation of human rights. In Uzbekistan, mandatory medical testing before marriage still prevails. 2. Council of Europe and the European Union The issue of tests and conditions placed on marriage has not been addressed by Council of Europe conventions or the European court of Human Rights, nor by binding European Union law. 3. Domestic legislation In Russia, pursuant to the Family Code, 409 public health care institutions carry out an optional medical examination for people who will marry. This medical examination is free of charge and only conducted with the consent of the individuals who marry. The legislation does not allow mandatory testing for HIV infection. The relevant provision reads: Chapter III, Article 15. Medical examination of people who marry 1. Medical examination of persons who marry, as well as advice on medical and genetic issues and family planning, are carried out by the state and municipal health care system at the place of their residence, free of charge, and with the consent of the persons who marry. 2. Results of the medical examination of person who marry constitute a medical secret and can be communicated to the person whom the individual who was tested intends to marry only with the consent of said individual. 3. If one of the persons who marry hides from the other party the presence of venereal disease or HIV infection, this can result in filing for annulment of marriage in the court (Articles 27 - 30 of this Code). The same regulations of medical examination/HIV testing of people who marry exist in all former Soviet Republics, with one exception: Uzbekistan still mandates that people who will marry must undergo a medical examination for mental illness, drug addiction, venereal diseases, tuberculosis, and HIV/AIDS, as regulated by the Family Code of the Republic of Uzbekistan. 410 These standards are aimed at creating conditions for the formation of healthy families and prevent the birth of children with hereditary and genetic diseases. If the tested person is HIVpositive or has any of the other diseases or conditions mentioned, this will serve as an impediment to marriage (Art 17). From 2009, if the intending spouses are over fifty years old, the medical examination will only be performed with their consent. 411 409 Available in Russian only. Translation by Ukrainian lawyer and researcher Oksana Shevchenko. 410 Available in Russian. Content explained by by Ukrainian lawyer and researcher Oksana Shevchenko. 411 On Amending article 17 of the Family Code, supplementing Article 17 of the Family Code, signed on 7 September 2009. Available in Russian only, content explained by Ukrainian lawyer and researcher Oksana Shevchenko. 133
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SEXUAL HEALTH AND HUMAN RIGHTS: EUR
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ACKNOWLEDGMENTS This report was wri
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In choosing these eight topics, and
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amputation, or arbitrary imprisonme
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headquarters situated in Strasbourg
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unfounded applications: the applica
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margin. 18 This standard has been k
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financial, and democratic supervisi
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EU and the Euro as its currency. Th
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3. Domestic legal systems As mentio
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METHODOLOGY The WHO project on sexu
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Because this report, and the projec
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grounds for discrimination. Gender
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assume large parts of her household
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In Lustig-Prean and Beckett v. the
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asis of family responsibilities (Ar
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promote social justice and protecti
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ground that the scheme did not cove
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ut also to discrimination arising f
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Many constitutions call for equalit
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The three criminal provisions inclu
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eassignment is defined broadly, ref
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iv.4. Gender identity discriminatio
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harassed workers out of their emplo
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epealed accordingly, but the conten
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and reactive) steps to protect the
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features of sexual harassment have
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harassment to make a claim against
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4. Regional non-binding material Th
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he or she he has “no disease caus
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In other European countries, calls
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Article 10 addresses reasons for pe
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her country of origin and cannot re
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compromised medical privacy or doub
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whether or not the participants wer
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uns contrary to EU non-discriminato
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provision criminalizing sexual rela
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2B. CRIMINALIZATION OF HIV TRANSMIS
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Swedish courts had determined that
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infected the women. In the lower co
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Page 85 and 86: The case, when reaching the Court,
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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
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Page 99 and 100: 3A. SAME-SEX MARRIAGE, PARTNERSHIP,
Page 101 and 102: The Court made clear that there is
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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
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Page 125 and 126: exceptions: countries that have cho
Page 127 and 128: 3E. POLYGAMY/POLYGYNY 1. Introducti
Page 129 and 130: 4. Domestic legislation In France,
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Page 135 and 136: United Kingdom, 414 the Court consi
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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
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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
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Page 161 and 162: gender. Specific legal issues invol
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Page 167 and 168: on repeated occasions from her husb
Page 169 and 170: Similarly, the European Commission
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Page 173 and 174: [w]hoever, on repeated occasions or
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Page 177 and 178: In M.C. v. Bulgaria, 523 the applic
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Page 181 and 182: Italy offers another example in the
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In Russia, the Supreme Court has pr
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testimony of the victim in rape tri
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number and passport details within
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condemnation of immunity for marita
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some regions have exempted from pen
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The 2007 Council of Europe Conventi
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European Social Charter and the Eur
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takes place, or whether the prosecu
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either to persons who were in fact
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permanently changes them will be se
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6. Concluding remarks European laws
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event of police abuse, on the other
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Greece illustrates this trend. In 2
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(a) must treat the fact that the of
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5E. HONOR CRIMES 1. Introduction Pr
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making provision for penalties to b
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that a decision of the family assem
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(Article 62.2). Mitigation of the s
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persons, regardless of what kind of
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purpose of exploitation) (Art. 4a).
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victims will be granted “standard
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e guilty of an offence, if the traf
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expanded. For example, a victim can
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last decade, on regional as well as
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sexual health services interacts wi
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provide abortion services at a mini
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Convention. These procedures, the C
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5. Domestic legislation and case la
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pregnant woman is disabled or dies
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document the patient’s opportunit
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Generally, it has been difficult to
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2. to provide advisory and educatio
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not anonymous) treatment even thoug
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5. Concluding remarks It is difficu
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information about contraceptive met
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sex with women) is to provide insuf
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a democratic society, the Court rei
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3. European Union The issues of sex
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eduction of sexual risks, the fight
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5. Concluding remarks The European
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conveyed via texts, images, and spe
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images can be easily known from the
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considered necessary in a democrati
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3. European Union The Council of th
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In 2008, the Criminal Justice and I
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By contrast, in Baczkowski, the Cou
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however, the dominance of criminali
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Other legal regimes are more rights
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The Assembly recommends Council of
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Netherlands, when they had not prev
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number. 896 As of late October 2009
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offence only if it includes exploit
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Zoning laws are determined by local
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sexual intercourse, but other forms
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sex workers (like other adults) hav
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DOMESTIC Albania - Law no. 9669 of
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Portugal - Law No 6/2001 of 11 May
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APPENDIX II: TABLE OF CASES Within
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- Gabrielle Defrenne v Société An
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APPENDIX IV: SELECT BIBLIOGRAPHY Ha
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STI AIDS Netherlands, “A Delicate
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Johanna Westeson - The ICHRP

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