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L. v. LITHUANIA - 27527/03 [2007] ECHR 725 (11 September 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/725.html
Cite as:
25 BHRC 199,
(2008) 46 EHRR 22,
[2007] ECHR 725
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SECOND
SECTION
CASE OF
L. v. LITHUANIA
(Application
no. 27527/03)
JUDGMENT
STRASBOURG
11
September 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of L. v. Lithuania,
The
European Court of Human Rights (Former Second Section), sitting as a
Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D.
Jočienė,
Mr D. Popović, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 17 October 2006 and 3 July 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 27527/03) against the Republic
of Lithuania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr L. The President of the Chamber acceded to
the applicant's request not to have his name disclosed (Rule 47 §
3 of the Rules of Court).
The
applicant alleged violations of Articles 3, 8, 12, and 14 of the
Convention, in respect of the lack of legal regulation regarding
transsexuals in Lithuania, and particularly the absence of any lawful
possibility to undergo full gender-reassignment surgery, which in
turn resulted in other hardships and inconveniences.
By
a decision of 6 July 2006, the Court declared the application partly
admissible.
A
hearing on the merits took place in public in the Human Rights
Building, Strasbourg, on 17 October 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms E. Baltutytė,
Agent,
Ms L. Urbaitė, Assistant to the Agent;
(b) for the applicant
Mr H. Mickevičius,
Counsel,
Ms A. Radvilaitė, Assistant to Counsel.
The
Court heard addresses by Mr H. Mickevičius and Ms E. Baltutytė,
as well as replies to its questions by Mr H. Mickevičius, Ms E.
Baltutytė, and Ms L. Urbaitė.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1978 and lives in Klaipėda.
At
birth the applicant was registered as a girl with a clearly female
name under the rules of the Lithuanian language.
The
applicant submits that from an early age he became aware of his male
mental sex, thus acknowledging the conflict between his mental and
genital gender.
On
18 May 1997 the applicant consulted a micro-surgeon about the
possibilities of gender-reassignment. The doctor proposed that the
applicant first consult a psychiatrist.
From
4 to 12 November 1997 the applicant attended the Vilnius Psychiatric
Hospital for tests on his physical and psychological condition.
On
16 December 1997 a doctor at the Vilnius University Hospital of
Santariškės confirmed the applicant's chromosomal sex as
female, and diagnosed him as a transsexual. This doctor also advised
that the applicant consult a psychiatrist.
On
23 January 1998 the Vilnius University Hospital of Raudonasis KryZius
opened a medical file on the applicant. The applicant gave his name
in a masculine form under the rules of the Lithuanian language, and
his medical file referred to him as being of male gender. An entry in
the medical file of 28 January 1998 included a recommendation
that the applicant pursue hormone treatment with a view to eventual
gender-reassignment surgery. Thereafter a two-month course of hormone
treatment was officially prescribed for the applicant. Moreover, it
was recommended that the applicant consult a neurosurgeon, who
subsequently performed breast removal surgery on the applicant (see
paragraph 19 below).
On
12 November 1998 the applicant, using his original name and surname,
wrote a letter to the Ministry of Health, seeking clarification of
the legal and medical possibilities for gender-reassignment. He
stated that he was determined to undergo this procedure.
On
17 December 1998 an official of the Ministry of Health replied that a
working group had been set up by the Minister of Health with a view
to analysing the questions pertaining to gender-reassignment, and
that the applicant would be duly informed about the conclusions of
that group.
Before
the Court, the applicant claimed that, thereafter, he received no
further communication from the Ministry of Health.
On
13 May 1999 a doctor at the Vilnius Psychiatric Hospital confirmed
that the applicant, referred to by his original name, had attended
the hospital from 4 to 12 November 1997, and that he had been
diagnosed as a transsexual.
The
applicant submits that in 1999 his general medical practitioner
refused to prescribe hormone therapy in view of the legal uncertainty
as to whether full gender-reassignment could be carried out, with the
new identity of a transsexual being registered pursuant to the
domestic law. Thereafter the applicant continued the hormone
treatment “unofficially”, as it was considered at that
time that such treatment should be followed for two years before the
full surgical procedure could be performed.
On
an unspecified date in 1999, the applicant requested that his name on
all official documents be changed to reflect his male identity; that
request was refused.
On
an unspecified date in 1999, the applicant entered Vilnius
University. Upon the applicant's request, the university
administration agreed to register the applicant as a student under
the male name chosen by him (bearing the initials P.L.). The
applicant asserted before the Court that the decision of the
University was exceptional and purely humanitarian, the laws
applicable at the material time having clearly required his
registration under his original female name, as indicated in his
birth certificate and passport.
From
3 to 9 May 2000 the applicant underwent “partial
gender-reassignment surgery” (breast removal). The applicant
agreed with the doctors that a further surgical step would be carried
out upon the adoption of the subsidiary laws governing the conditions
and procedure thereof.
On
an unspecified date in 2000, with the assistance of a Lithuanian
Member of Parliament (the “MP”), the applicant's birth
certificate and passport were changed to indicate the applicant's
identity as P.L. The name and surname chosen by the applicant for
this new identity were of Slavic origin, and thus did not disclose
the applicant's gender. The applicant could not choose a Lithuanian
name or surname as they are all gender-sensitive. However, the
applicant's “personal code” in his new birth certificate
and passport, i.e. a numerical code comprising the basic information
about a person in accordance with the Lithuanian civil registration
rules, remained the same, starting with number “4”, thus
disclosing his gender as female (see paragraphs 28-29 below).
The
applicant underlined that he therefore remains of female gender under
domestic law. This was confirmed inter alia by the fact that,
in his Vilnius University diploma received after successfully
graduating in 2003, his “personal code” remained the same
and denoted him as a female. As a result, he claimed that he faces
great daily embarrassment and difficulties, as he is unable to apply
for a job, pay social security contributions, consult medical
institutions, communicate with the authorities, obtain a bank loan,
cross the State border, etc., without disclosing his female identity.
The
applicant submitted a copy of an article by the Baltic News Agency
(BNS) of 17 June 2003, quoting the statement of the Chairman of
Seimas on the Gender-Reassignment Bill (put before Parliament on 3
June 2003; paragraph 30 below). It was mentioned in the article that
certain MPs accused the Minister of Health of being personally
interested in the adoption of the law, as he was a plastic surgeon.
The article also mentioned that certain members of the Social
Democratic Party urged the adoption of the law as it was required by
the imminent entry into force of the provisions of the new Civil Code
on 1 July 2003. The article included a reference to the
opinion of experts, according to which about 50 transsexuals were
presumed to live in Lithuania. It was mentioned that certain Vilnius
and Kaunas surgeons were properly equipped and qualified to carry out
gender-reassignment surgery, the cost of which could be between 3,000
and 4,000 Lithuanian litai ([“LTL”]; about 870 to 1,150
euros [“EUR”]), excluding the cost of hormone therapy.
The article stated that a number of persons had already applied for
gender-reassignment, but that the surgery could not be fully
completed in the absence of adequate legal regulation. It was
presumed that some of the Lithuanian transsexuals were thus obliged
to go abroad for treatment.
In
an article by the BNS on 18 June 2003 about the meeting between the
Prime Minister and the heads of the Lithuanian Catholic Church, the
Prime Minister was quoted as saying that it was too early for
Lithuania to adopt a law on gender-reassignment, and that there was
“no need to rush” or “copy the principles that
exist in one country or another.” The article stated that the
Catholic Church had been among the most ardent opponents of such
legislation. At the same time, the Prime Minister conceded that the
Government was obliged to prepare a Gender-Reassignment Bill in view
of the entry into force of Article 2.27 § 1 of the new Civil
Code on 1 July 2003.
The
applicant claimed that since 1998 he has had a stable relationship
with a woman and that they have lived together since 1999.
II. RELEVANT DOMESTIC LAW AND PRACTICE
There
were no provisions pertaining to the question of transsexuals in
Lithuanian law until the adoption of the new Civil Code on 18 July
2000. The Civil Code entered into force on 1 July 2001. Article 2.27
§ 1 of that Code (which Article only entered into force on 1
July 2003) provides that an unmarried adult has the right to
gender-reassignment surgery (pakeisti lytį),
if this is medically possible. A request by the person concerned
shall be made in writing. The second paragraph of this provision
stipulates that the conditions and procedure for gender-reassignment
surgery shall be established by law.
On
27 December 2000 the Government adopted a decree specifying the
measures needed for the implementation of the new Civil Code. The
preparation of a Gender-Reassignment Bill was mentioned in it.
Rule 109.2
of the Civil Registration Rules, approved by an order of the Minister
of Justice of 29 June 2001 (in force as of 12 July 2001), permits the
change in the acts of civil status if there is a need to change a
person's gender, name and surname, following gender-reassignment.
Pursuant
to the Residents Register Act and other relevant domestic laws, every
Lithuanian resident has a numerical “personal code”
(asmens kodas), which denotes certain basic information,
including his or her gender. Article 8 § 2 of the
Residents Register Act provides that the first number of the personal
code denotes the person's gender. A personal code starting with
number “3” denotes that the person is male, whereas a
code starting with number “4” means that the person is
female.
Article 5
of the Passport Act 2003 provides that a passport shall be changed if
a citizen changes his or her name, surname, gender or personal code.
The
Gender-Reassignment Bill was prepared by a working group of the
Ministry of Health in early 2003. On 3 June 2003 the Government
approved the Bill, sending it for consideration to the Seimas
(Parliament). In an explanatory note dated 4 June 2003 to Parliament,
the Minister of Health indicated inter alia that, at present,
no legal act regulated the conditions and procedure for
gender-reassignment. The Bill was initially scheduled for a plenary
session of Parliament on 12 June 2003, but it was not examined that
day. It was rescheduled for 17 June 2003, but was then omitted from
Parliament's agenda. On the same date the Chairman of Parliament
circulated an official memorandum on the Bill, stating inter alia:
“The Chairman of Seimas ... strongly denounces
gender-reassignment surgery and the further consideration of a draft
law thereon in a parliamentary hearing.
[At a time] when the demographic situation in Lithuania
becomes threatened, the Seimas should not exaggerate in considering
such a controversial law, which can be taken by society as an insult
to the far more important problems facing the health-care system.”
31. The
order of the Minister of Health, issued on 6 September 2001,
specifies the conditions under which patients in Lithuania can be
directed for treatment abroad, in cases where the necessary treatment
for a certain illness is not available in Lithuania. The decision is
taken by a special commission of experts called by the Minister of
Health, and the expenses of such treatment are covered by the
Compulsory Health Insurance Fund.
32. On 8 August 2006 the
Constitutional Court ruled that the courts were empowered to fill the
legal gaps left by the legislator where this was necessary, inter
alia, for the protection of the rights and freedoms of a
particular individual.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
The
Government alleged that the applicant had failed to exhaust domestic
remedies as regards his complaints about his inability to complete
the course of gender-reassignment. They asserted that the applicant
had a possibility to bring a claim – by way of civil or
administrative procedures – requesting damages for the alleged
inactivity of the administrative and health-care authorities, and/or
doctors, when dealing with his gender-reassignment needs. The
Government maintained that such an action would have enabled the
courts to fill the legislative lacunae. In this respect, the
Government referred to the Constitutional Court ruling of 8 August
2006, in which a certain law-making role of the courts had been
acknowledged (see paragraph 32 above). Alternatively, the domestic
courts would have had an opportunity to seek the opinion of the
Constitutional Court, as to whether the existence of the legal gaps
in issue was in conformity with the Constitution. While the
Government conceded that there was no particular domestic case-law
regarding transsexuals, they argued that this factor alone was not
sufficient to raise doubts about the effectiveness of a civil action
as a remedy or to presume the lack of any prospects of success.
The
applicant contested the Government's submissions.
However,
the Court recalls that Article 35 § 1 of the Convention only
requires the exhaustion of remedies which are available and
sufficient, in theory as well as practice, as of the date of
introduction of an application before the Court (cf. e.g.
Stoeterij Zangersheide N.V. v. Belgium (déc.),
no.
47295/99, 27 May 2004; a contrario, Mifsud v. France [GC]
(déc.), no 57220/00, §§ 15-18, 11
September 2002).
The
Court notes that it has already rejected this plea by the Government
in its decision on the admissibility of the present case on 6 July
2006, because the applicant's complaint essentially concerns the
state of the law. In this connection, it observes that the relevant
provisions of the Civil Code concerning gender-reassignment surgery
require implementation by subsidiary legislation which has yet to be
adopted (see paragraph 25 above). It would seem that such legislation
has no priority for the legislature (see paragraph 30 above).
Moreover, the Constitutional Court judgment referred to by the
Government (paragraph 32 above) was adopted well after the
introduction of the present application before the Court.
Accordingly, it cannot be opposed to the applicant's claim. In these
circumstances, the Court confirms its original conclusion that the
applicant had no effective remedies available to him at the material
time for his specific complaints, and therefore rejects the
Government's preliminary objection.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
37. The applicant
complained about his inability to complete gender-reassignment
surgery due to the lack of legal regulation of the subject. He
invoked Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The
parties' submissions
1. The applicant
The
applicant alleged that his continuing inability to complete
gender-reassignment surgery left him with a permanent feeling of
personal inadequacy and an inability to accept his body, leading to
great anguish and frustration. Furthermore, due to the lack of
recognition of his perceived, albeit pre-operative, identity, the
applicant constantly faced anxiety, fear, embarrassment and
humiliation in his daily life. He has had to submit to severe
hostility and taunts in the light of the general public's strong
opposition, rooted in traditional Catholicism, to gender disorders.
Consequently, he has had to follow an almost underground life-style,
avoiding situations in which he might have to disclose his original
identity, particularly when having to provide his personal code (see
paragraph 28 above). This has left him in a permanent state of
depression with suicidal tendencies.
In
the applicant's view, the State's inactivity was the main cause of
his suffering. Since the entry into force of the new Civil Code, the
applicant had had reasonable hopes of completing the treatment and
registering his new identity. By that stage, the applicant had
already been duly diagnosed as a transsexual, had been following
hormone treatment since 1998, and had undergone breast removal
surgery. However, the Gender-Reassignment Bill – put before the
legislature in June 2003 – had been withdrawn from the
parliamentary agenda without any objective reason or explanation
being given. The Government have thus failed to fulfil their positive
obligations under Article 3 of the Convention to protect the
applicant from the impossible situation in which he finds himself
(described in the preceding paragraph).
Referring
to the Court's case-law, the applicant considered that Parliament's
inaction was to be seen as a concession to the negative attitude of
the population, revealing the bias of a hostile majority towards the
transsexual minority, which in itself should be seen as falling
within the scope of Article 3. The applicant contended that the
State's failure to adopt the necessary legislation on
gender-reassignment surgery, which would allow him to complete his
treatment and have his new gender legally recognised, amounted to
inhuman and degrading treatment.
2. The Government
41. The Government
argued that neither the Convention in general nor Article 3 in
particular could be interpreted as laying down a general obligation
to provide full gender-reassignment surgery for transsexuals. Nor
could it be maintained that such irreversible surgery was
indispensable for the treatment of gender-identity disorders. In
particular, general medical practice had shown that hormone therapy
and partial gender-reassignment surgery, such as breast removal,
might in certain cases be sufficient to help a female-to-male
transsexual pursue his life experience in the role of the desired
gender. The applicant had not substantiated his claim that he needed
the full procedure.
42. The Government
pointed out that transsexuality was a rare disorder, the scale of
which is difficult to assess, particularly since freedom of movement
within the European Union had encouraged many people to leave the
country. There had certainly been no intention on the part of the
State to humiliate or debase transsexuals. They maintained that
transsexuality as a disease was by no means neglected. Indeed, the
applicant had been afforded due medical assistance in the form of
medical consultations and hormone treatment. The applicant was also
entitled to seek confirmation of the medical necessity for full
gender-reassignment surgery, which might have enabled him to be
directed for medical treatment abroad, financed by the State
(paragraph 31 above).
43. Whilst recognising
that transsexuals might encounter some difficulties in their daily
lives, those difficulties were not intentionally created or inflicted
by the State. On the contrary, steps had been taken to alleviate the
problems, such as allowing the applicant to change his name. A change
in the entries for all official documents, including the personal
code, may be effected on completion of the transsexual's
gender-reassignment surgery.
44. Furthermore, the
State could not be held responsible for the alleged deterioration in
the applicant's health, as the applicant chose - on his own
initiative and disregarding the warnings of doctors - to continue his
hormone treatment unofficially, beyond that prescribed for two months
in 1998.
45. In sum, the
Government maintained that the alleged ill-treatment did not attain
the minimum level of severity in order to fall within the scope of
Article 3. They considered that the issue of the regulation of
gender-reassignment surgery and the recognition of transsexuals'
identity fell to be dealt with under Article 8 of the Convention
alone. Anyway, the Government asserted, the State had fulfilled its
positive obligations under both Articles 3 and 8 by providing
adequate health care for the treatment of disease and avoidable
death, including appropriate treatment for transsexuals -
psychiatric, surgical, hormonal, etc.
B. The Court's assessment
The
Court observes that the prohibition under Article 3 of the Convention
is of an absolute nature, but that the kind of treatment qualified as
inhuman and degrading will depend upon an examination of the facts of
the specific case in order to establish whether the suffering caused
was so severe as to fall within the ambit of this provision.
Moreover, according to its established case-law, Article 3 entails a
positive obligation on the part of the State to protect the
individual from acute ill-treatment, whether physical or mental,
whatever its source. Thus if the source is a naturally occurring
illness, the treatment for which could involve the responsibility of
the State, but is not forthcoming or patently inadequate, an issue
may arise under this provision (see, for example, D. v.
the United Kingdom, judgment of 2 May 1997, Reports of
Judgments and Decisions §§ 51-54; mutatis mutandis
Pretty v. the United Kingdom, no. 2346/02, §§
49-52, ECHR 2002 III).
However,
an examination of the facts of the present case, whilst revealing the
applicant's understandable distress and frustration, does not
indicate circumstances of such an intense degree, involving the
exceptional, life-threatening conditions found in the cases of Mr D.
and Mrs Pretty, cited above, and thereby falling within the scope of
Article 3 of the Convention. The Court considers it more appropriate
to analyse this aspect of the applicant's complaint under Article 8
(respect for private life) below.
Consequently,
the Court finds no violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant alleged that the State has failed to respect its positive
obligations under Article 8, which provides in so far as relevant as
follows:
“1. Everyone has the right to respect
for his private ... life, ...
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 ...
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The
parties' submissions
1. The applicant
Emphasising
his arguments under Article 3 above (paragraphs 38-40), the applicant
repeated that the State had failed to provide him with a lawful
opportunity to complete his gender-reassignment and obtain full
recognition of the post-operative gender. He reiterated that the
right to gender-reassignment surgery had been foreseen by the new
Civil Code since 2003, but no subsidiary legislation had been adopted
to implement that right. The applicant further recalled that,
although he had been able to change his name to a gender-neutral
form, the law did not provide for a change in the personal code of
pre-operative transsexuals (see paragraph 28 above). As a result he
has foregone numerous opportunities in the areas of, for example,
employment, health care, social security, freedom of movement,
business transactions, socialising and personal development, in order
to avoid hostility and taunts. He has thus been condemned to legal
and social ostracism because he looks masculine but his documents
identify him as a woman.
The
applicant argued that there was no public interest whatsoever
weighing against the interests of medically recognised transsexuals
to complete their gender change and have it legally entrenched.
Furthermore, the absence of necessary legislation was
disproportionate to the protection of any purported countervailing
interest of the community as a whole. Accordingly, the State had
failed in its positive obligations under Article 8 to complete the
measures it had already envisaged to protect the applicant's human
dignity and prevent intrusion into his private life.
2. The Government
52. Further to their
pleadings under Article 3 above (paragraphs 41-45), the Government
maintained that a wide margin of appreciation should be afforded to
States in regulating gender-reassignment and deciding whether to
recognise a person's new identity where the required surgery is
incomplete. In this respect they cited, inter alia, the
cultural specificities and religious sensitivities of Lithuanian
society regarding the gender-reassignment debate.
Insofar
as the regulation of gender-reassignment surgery was concerned, the
Government reiterated their claim that the medical treatment afforded
to transsexuals in Lithuania was capable of guaranteeing respect for
private life. Moreover, Lithuanian law entitled transsexuals to have
the entries in official documents changed, including their personal
code, after full gender-reassignment.
As
regards the pre-operative recognition of a diagnosed gender, the
Government argued that there was an overriding public interest in
ensuring legal certainly as to a person's gender and the various
relationships between people. In this connection, they recalled that
the applicant had indeed been able to make a gender-neutral change in
his name.
The Government again stressed that the applicant had failed to
provide evidence as to the necessity and feasibility of full
gender-reassignment surgery in his case. They had recently proposed
to the applicant that he undergo a comprehensive psychiatric and
physical examination of his current state of health with a view to
assessing present possibilities and needs, but the applicant has
declined that offer. The Government expressed a certain concern about
the level of expertise available in Lithuania for such specialised,
rare surgery at the moment, whereas surgery performed by practising
experts abroad might be an appropriate temporary solution to the
problems faced by transsexuals, for which the State might provide
financial assistance (paragraph 31 above).
B. The Court's assessment
The
Court recalls the positive obligation upon States to ensure respect
for private life, including respect for human dignity and the quality
of life in certain respects (cf. mutatis mutandis the
aforementioned Pretty judgment, § 65). It has examined
several cases involving the problems faced by transsexuals in the
light of present-day conditions, and has noted and endorsed the
evolving improvement of State measures to ensure their recognition
and protection under Article 8 of the Convention (e.g. Christine
Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR
2002 VI; Van Kück v. Germany, no. 35968/97,
ECHR 2003 VII; Grant v. the United Kingdom, no. 32570/03,
ECHR 2006). Whilst affording a certain margin of
appreciation to States in this field, the Court has nevertheless held
that States are required, by their positive obligation under Article
8, to implement the recognition of the gender change in
post-operative transsexuals through, inter alia, amendments to
their civil status data, with its ensuing consequences (e.g. the
abovementioned judgments - Christine Goodwin, §§
71- 93, and Grant §§ 39-44).
The
present case presents another aspect of the problems faced by
transsexuals: Lithuanian law recognises their right to change not
only their gender but also their civil status (paragraphs 25, 27, and
29 above). However, there is a gap in the pertinent legislation;
there is no law regulating full gender-reassignment surgery. Until
that law is adopted there do not appear to be suitable medical
facilities reasonably accessible or available in Lithuania itself
(paragraphs 13, 16, 19, 22, 25, 30 and 55 above). Consequently, the
applicant finds himself in the intermediate position of a
pre-operative transsexual, having undergone partial surgery, with
certain important civil status documents having been changed.
However, until he undergoes the full surgery, his personal code will
not be amended and, therefore, in some significant situations for his
private life, such as his employment opportunities or travel abroad,
he remains a woman (paragraphs 19-21 above).
The
Court notes that the applicant has obtained partial
gender-reassignment surgery. It is not entirely clear to what extent
he could complete the procedure privately in Lithuania (cf. the
newspaper reference at paragraph 22 above). However, that
consideration has not been put forward by either party to the present
case so, presumably, it is to be excluded. As a short term solution,
it may be possible for the applicant to have the remaining operation
abroad, financed in whole or in part by the State (paragraphs 31, 42
and 55 above).
The
Court finds that the circumstances of the case reveal a limited
legislative gap in gender-reassignment surgery which leaves the
applicant in a situation of distressing uncertainty vis-à-vis
his private life and the recognition of his true identity. Whilst
budgetary restraints in the public health service might have
justified some initial delays in implementing the rights of
transsexuals under the Civil Code, over four years have elapsed since
the pertinent provisions came into force and the necessary
legislation, although drafted, has yet to be adopted (paragraph 30
above). Given the few individuals involved (some 50 people, according
to unofficial estimates; paragraph 22 above), the budgetary burden on
the State would not be expected to be unduly heavy. Consequently, the
Court considers that a fair balance has not been struck between the
public interest and the rights of the applicant.
In
the light of the above considerations, the Court concludes that there
has been a violation of Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION
The
applicant complained that his inability to complete his
gender-reassignment had prevented him from marrying and founding a
family, in violation of Article 12 of the Convention, which reads as
follows:
“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.”
A. The parties' submissions
The applicant has been living as a man for some 10
years now and was diagnosed with a gender identity disorder 9 years
ago. He has been in a stable relationship with a woman since 1998 and
they have been living together since 1999 (paragraph 24 above). They
wish to legalise their long-lasting relationship, marry and establish
a family through adoption.
The Government argued that the applicant could not be
considered a victim or even a potential victim of the alleged
violation, in that the relevant civil rules did not prevent a
transsexual from marrying in his new identity following
gender-reassignment surgery. The key issue was still that of gender
recognition and, as such, better dealt with under Article 8 of the
Convention.
B. The Court's assessment
64. The Court observes that the applicant's complaint under
Article 12 is premature, in that, should he complete full
gender-reassignment surgery, his status as a man would be
recognised together with the right to marry a woman. In these
circumstances, the Court agrees with the Government that the key
issue is still that of the legislative gap which has been analysed
under Article 8 above. Consequently, it finds it unnecessary to
examine this aspect of the case separately under Article 12 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLES 3 AND 8 OF THE CONVENTION
The applicant argued that the lack of legal regulation
in Lithuania regarding the treatment and status of transsexuals
revealed the discriminatory attitude of the Lithuanian authorities,
in breach of Article 14 of the Convention, which provides as follows:
“The enjoyment of the rights and freedoms set
forth in the 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.”
A. The parties' submissions
The applicant alleged that the failure of the State to
adopt the necessary legislation on gender-reassignment was
essentially based on the prejudices and hostile attitudes of the
majority of the Lithuanian population towards transsexuals as a
minority group, and served no legitimate aim. No objective and
reasonable justification had been put forward by the Government for
the indefinite postponement of the adoption of the subsidiary
legislation required by the Civil Code. As a result, the applicant
had been denied vital opportunities as a transsexual, particularly as
regards the treatment of his gender identity disorder and the
effective legal recognition of his status.
The Government contested these allegations. They
claimed that no separate issue arose under this provision which had
not already been dealt with under Articles 3 and 8 above.
B. The Court's assessment
68. Again the Court finds that, in the circumstances of the present
case, the applicant's complaint of discrimination is essentially the
same, albeit seen from a different angle, as that which the Court has
considered above under Articles 3 and 8 of the Convention (cf. the
Van Kück judgment cited above, § 91). Consequently,
it finds it unnecessary to examine this aspect of the case separately
under Article 14 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed pecuniary damage of 33,589.46 Lithuanian litai
([“LTL”]; about 9,728 euros [“EUR”]), which
represented:
a)
his loss of earnings, given his limited employment possibilities in
order to avoid drawing attention to his status (LTL 26,391);
b)
compensation for his private as well as unofficial medical treatment,
which was more costly than State health care, but did not require him
to reveal his identity (LTL 4,318.46); and
c)
compensation for his prolonged hormone treatment, while awaiting the
legal possibility to complete the gender-reassignment procedure
(LTL
2,880).
The
applicant further claimed EUR 47,680 to cover the fees for the
eventual completion of the gender-reassignment surgery. In this
respect, the applicant argued that, even if the legal gaps in
Lithuanian law were eventually filled, there would still be no
prospect of completing the gender-reassignment surgery in Lithuania
within a reasonable time. He therefore contended that this sum was
needed to carry out the surgery abroad.
Finally,
the applicant asked for non-pecuniary damage in the amount of EUR
200,000 in respect of the stress, anxiety, fear and humiliation which
he has suffered, as well as the inability to enjoy his rights.
The
Government considered these claims to be unsubstantiated and
speculative. They noted that, prior to the Civil Code which came into
force on 1 July 2003, the applicant had had no right to treatment for
his disorder under domestic law. Moreover, the applicant had not
presented any evidence of his current needs and state of health, in
relation to further surgery.
The
Court recalls the limited nature of the violation which it has found
(paragraphs 59-60 above). It considers that the applicant's claim for
pecuniary damage would be met by the adoption of the subsidiary
legislation which has been at issue in the present case, within three
months of the present judgment becoming final, pursuant to
Article 44 § 2 of the Convention. However, should
that prove impossible, and in view of the uncertainty about the
medical expertise currently available in Lithuania, the Court is of
the view that this aspect of the applicant's claim could be met by
him having the final stages of the necessary surgery performed
abroad, to be financed, at least in part, by the respondent State.
Consequently, as an alternative in the absence of the said subsidiary
legislation, the Court would award the applicant EUR 40,000 in
pecuniary damage.
As
regards the applicant's claim for non-pecuniary damage, the Court,
deciding on an equitable basis, as required by Article 41 of the
Convention, awards the applicant EUR 5,000.
B. Costs and expenses
The
applicant claimed EUR 9,403 for legal costs and expenses incurred in
the proceedings before the Court. The cost of travel to the Court
hearing, together with accommodation and other related expenses, were
claimed in the sum of EUR 603.
The
Government submitted that the claim for legal costs and expenses
appeared excessive and unjustified, particularly as the applicant had
received legal aid from the Council of Europe.
The
Court notes that the applicant had the benefit of legal aid from the
Council of Europe for his representation in the present case in the
total amount of EUR
2,071.81. It concludes that this
amount is sufficient in the circumstances.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Dismisses, by 6 votes to 1, the Government's
preliminary objection;
Holds, by 6 votes to 1, that there has been no
violation of Article 3 of the Convention;
Holds, by 6 votes to 1, that there has been a
violation of Article 8 of the Convention;
Holds, by 6 votes to 1, that there is no need to
examine separately the applicant's complaints under Articles 12 and
14 of the Convention;
Holds, by 5 votes to 2, that the respondent
State, in order to meet the applicant's claim for pecuniary damage,
is to adopt the required subsidiary legislation to Article 2.27 of
its Civil Code on the gender-reassignment of transsexuals, within
three months of the present judgment becoming final, in accordance
with Article 44 § 2 of the Convention;
Holds, by 6 votes to 1, alternatively, that
should those legislative measures prove impossible to adopt within
three months of the present judgment becoming final, in accordance
with Article 44 § 2 of the Convention, the
respondent State is to pay the applicant EUR 40,000 (forty thousand
euros) in respect of pecuniary damage;
Holds, by 6 votes to 1, that the respondent
State is to pay the applicant, within the aforementioned three month
period, EUR 5,000 (five thousand euros) in respect of non-pecuniary
damage;
8. Holds, by 6 votes to 1,
(a) that the respondent State is to pay the applicant, within the
aforementioned three month period, any tax which may be chargeable on
the above amounts, and that all the sums due are to be converted into
the currency of the respondent State at the rate applicable at the
date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 11 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P.
Costa
Registrar President
In
accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of the Court, the separate opinions
of Judges Fura-Sandström and Popović are annexed to this
judgment.
J.-P.C.
S.D.
PARTLY DISSENTING OPINION OF JUDGE
FURA-SANDSTRÖM
I
voted against holding that the respondent State, in order to meet the
applicant's claim for pecuniary damages, should adopt the required
subsidiary legislation, pursuant to Article 2.27 of its Civil Code on
the gender-reassignment of transsexuals, within three months of the
judgement becoming final (see paragraph 74 and point 5 of the
operative part). In all other aspects I agree with the majority.
My
principal concern is that, by adopting such a solution, the Court
risks acting ultra vires. The Convention clearly sets out a
division of competences. According to Article 41 of the Convention,
it falls upon the Court, when a violation of the Convention or its
Protocols has been found, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be
made, to afford just satisfaction to the injured party, if necessary.
In Article 46 § 2 of the Convention it is stated that the final
judgement of the Court shall be transmitted to the Committee of
Ministers, which shall supervise its execution.
Looking
at the case at hand, I would make the following observations: The
applicant claimed pecuniary damage in the amount of EUR 57 408
euros for medical fees, loss of earnings, hormone treatment and the
expense of an eventual completion of the gender-reassignment surgery
abroad (paragraphs 70-71 of the judgment). The applicant further
alleged that, even if the legal gaps in Lithuanian law were
eventually filled, there would still be no prospect of completing the
gender-reassignment surgery in Lithuania within a reasonable time
(see paragraph 71 of the judgment). So I wonder whether the
imposition of an obligation upon the respondent Government to adopt
the required legislation would be “affording just satisfaction
to the injured party”, strictly speaking. The applicant does
not seem to believe this to be the case.
I am
aware of the Court's possibility to prescribe general measures in
order to prevent the recurrence of similar violations in the future
(see for example Broniowski v. Poland [GC], no. 31443/96,
ECHR 2004 V, and Hutten-Czapska v. Poland [GC],
no. 35014/97, ECHR 2006, where the violations originated in a
systemic problem connected with the malfunctioning of domestic
legislation, and there were many other similar cases pending before
the Court as well as a great number of potential applicants).
However, the present application can be distinguished from such cases
as, here, the Court prescribes a general measure to redress an
individual complaint. Only as an alternative, should those
legislative measures prove impossible to adopt within the said
time-limit, is the respondent State ordered to pay EUR 40 000 in
respect of pecuniary damage (see paragraph 74 and point 6 of the
operative part). For me, this does not afford just satisfaction to
the applicant, as required by Article 41.
For
these reasons I would have preferred simply to order a payment in
respect of pecuniary damages and, only as a secondary measure, have
the Court indicate the need to adopt new legislation.
DISSENTING OPINION OF JUDGE POPOVIĆ
I
respectfully disagree with the opinion of the majority of judges, for
the following reasons.
Although
I voted along with my colleagues in favour of the admissibility of
the application in this case, I have subsequently reconsidered my
opinion in the light of the parties' submissions at the oral
hearing.
On
the one hand, the applicant submitted that he had never tried to
exhaust any domestic remedy because of their alleged inefficacy. On
the other hand, the Government submitted that there has been a
recent, convincing ruling of the Constitutional Court of Lithuania on
national judicial remedies.
Faced
with such facts, my approach is two-fold: either one returns to the
question of admissibility, or one raises ex officio the issue
under Article 13 of the Convention, read in conjunction either with
Articles 8 or 3 of the Convention, thus thoroughly re-considering the
matter and determining whether there is an effective remedy
under domestic law.
My
preference would be to return to the admissibility issue with
reference to paragraph 1 of the Law part of the admissibility
decision in this case, taken on 6 July 2006, which refers to the
decision in Valašinas v.
Lithuania (44558/98) as the only authority. However, this
precedent is clearly distinguishable from the present case. The
decision on admissibility in Valašinas in favour of an
applicant who had not exhausted domestic remedies was taken after the
Court had made an on-site investigation into the applicant's
conditions of detention. In the present case the Court has merely
agreed with the applicant's allegation that no effective domestic
remedy existed. The present applicant's only argument was
founded on a legal gap in the national legal system, stemming
either from a failure of the Government to pass subsidiary
legislation or to introduce a bill to that end. However,
there was, and still is, under Lithuanian law primary
legislation (Article 2.27 § 1 of the Civil Code 2001) which
unequivocally meets the applicant's aspirations.
The
applicant appears to have sought redress from the Ministry
of Health, which failed to respond. In such circumstances, the
applicant should have tried to bring an action
against the Administration for a failure to act, which the
applicant, although represented by a lawyer, failed to do.
Alleging
the inefficacy of domestic remedies, without any attempt to address
the domestic judiciary, the applicant apparently relies on the
idea that the courts would somehow be unwilling to find in his
favour despite the existence of a clear legal provision in the Civil
Code.
One
can only speculate that this submission is borne of the view that the
judiciary is still a relic of the former authoritarian communist
regime. Such courts would refuse to take a constructive approach to a
legal provision, because of the mentality of the judges, who used to
work in fear of the political authorities for decades. They would
therefore tend to stick to a strictly literal interpretation of the
text of the written law. The applicant therefore apparently feared
that, in the absence of specific subsidiary legislation, the national
courts of law might refuse to apply primary legislation.
However,
although social developments and adjustment take time, there is
nothing to support the thesis that, nowadays, an applicant
should be allowed by this Court to neglect the judiciary of
a High Contracting Party to the Convention by claiming its prima
facie inefficacy. Such an approach is wholly
unjustified. On the contrary, national judges should be
encouraged to take a bolder stand in interpreting domestic legal
provisions, and applicants should not be allowed to circumvent their
national courts. Applicants must address the domestic judiciary
before lodging an application with this Court.
Moreover,
the Government submitted that there had been some evolution in the
domestic case-law. It was to be found in the ruling of the
Constitutional Court of Lithuania as regards the general
issue of remedies before domestic courts of law. The
Constitutional Court stated inter alia: “...the courts
... which administer justice ... have to construe law so that
they are able to apply it.” Further on, the Constitutional
Court found that if the courts of law were not to interpret the
law “it would mean that law is treated only in its textual form
and is identified with the latter” (Constitutional Court of
Lithuania, case 34/03, Decision of 8 August 2006, § 6.2.3.3.).
The
majority of judges seem to be convinced, in the absence of any
evidence whatsoever, that the courts in Lithuania would be willing to
apply future legislation, if adopted after the introduction of the
Government's bill, although they might fail to apply the existing
law. Such a belief appears groundless, especially if one takes
account of the fact that the applicant has never tried to address the
domestic judiciary.
The
position of the parties is as follows: the applicant failed to
exhaust domestic remedies, preferring merely to allege their
inefficacy, although he was unable to substantiate that allegation,
whereas the Government invoked the evolution of the domestic case-law
on remedies.
I agree
with the Government's preliminary objection of non-exhaustion of
domestic remedies, and consider the application premature. It is,
therefore, inadmissible pursuant to Article 35 §§ 1 and 4
of the Convention.
