July 23, 2012
The ECtHR has brought a turbulent Dutch legal saga to a close. In the highly interesting Staatkundig Gereformeerde Partij v. the Netherlands, the Court has declared the complaint by the Dutch political party ‘SGP’ inadmissible. The SGP is, in the words of the Court, “a confessional political party firmly rooted in historical Dutch Reformed Protestantism” (par. 4). The party does not allow women to stand for election, as it believes that God teaches that men and women have different roles in life. It believes that “man is the head of the woman” and “participation of women in both representative and administrative political organs” is “incompatible with woman’s calling” (par. 9). After a prolonged debate and legal struggle in the domestic courts, the Dutch Supreme Court ruled that, on the ground of Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), the State is obliged to ensure that political parties allow women to exercise their right to stand for election. The SGP complained to the Strasbourg Court that this ruling of the Supreme Court infringed Articles 9 (right to freedom of religion), Article 10 (right to freedom of expression) and Article 11 (right to assembly) of the ECHR.
Frankly, what I expected to find was a terse decision, basically referring to the State’s margin of appreciation. I was wrong. The reasoning is brief, but includes three steps that combine to make this a memorable ruling. I will discuss these steps below. By the way, this case has provoked a lot of controversy in the Netherlands over the past years (most of it is in Dutch, but see this article in the Human Rights Quarterly). With this post, I cannot do justice to the whole debate; I just aim to give you my first impressions of the decision.
1) Explicit grounding of the decision in a commitment to democracy
The Court starts off by stressing that:
the Convention was designed to promote and maintain the ideals and values of a democratic society. Democracy . . . is the only political model contemplated in the Convention and the only one compatible with it. By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention , the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that may claim to spring from a “democratic society” (par. 70).
The Court does not often feel itself called upon to revisit the foundations of its human rights protection regime, which is why I reproduce this quote.
2) Discrimination Analysis
Next, the Court introduces Article 14 (the prohibition of discrimination) and Article 3 of Protocol 1 (the right to free elections) into the analysis. In some ways this is a rather unusual step, as the Court is not apt to invoke Article 14; especially when the applicant did not do so. However, the prohibition of discrimination has obviously played a crucial role in the domestic proceedings so it is no wonder that the Court relies on it.
The Court refers to the well-known ‘very weighty reasons test’: “very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention (par. 72).” More concretely, the Court holds that:
nowadays the advancement of the equality of the sexes in the member States of the Council of Europe prevents the State from lending its support to views of the man’s role as primordial and the woman’s as secondary (see, mutatis mutandis, Ünal Tekeli, cited above, § 63, and Konstantin Markin, cited above, ibidem). (par. 73)
Regular readers of this blog will appreciate how pleased I am with this statement that shows that the case of Konstantin Markin v. Russia is making school (see my post about Konstantin Markin here; and here the amicus brief of Ghent’s Human Rights Centre in that case). The Court has clearly taken a stance against gender stereotyping, something that I have advocated in my own work (see my article “Towards an Anti-Stereotyping Approach for the ECtHR”.)
3) No margin of appreciation argument, but an endorsement of the position of the Supreme Court
So what is the Court’s conclusion out of all this? What I expected to find in this decision was a statement to the effect that since this issue has been thoroughly debated in the Netherlands – both in Parliament and at all levels of the domestic courts – the Court finds that the State has not overstepped its margin of appreciation in this delicate issue. But no! The Court actually says that – from the perspective of the Convention – it agrees with the Supreme Court of the Netherlands:
The Supreme Court, in paragraphs 4.5.1 to 4.5.5 of its judgment, concluded from Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women and from Articles 2 and 25 of the International Covenant on Civil and Political Rights taken together that the SGP’s position is unacceptable regardless of the deeply-held religious conviction on which it is based (see paragraph 49 above). For its part, and having regard to the Preamble to the Convention and the case-law cited in paragraphs 70, 71 and 72 above, the Court takes the view that in terms of the Convention the same conclusion flows naturally from Article 3 of Protocol No. 1 taken together with Article 14. (par. 77)
From a women’s rights perspective, this is a decision that includes some welcome and innovative reasoning. From the perspective of the right to freedom of religion, however, this decision might be unsatisfactory. The Court does not even use the whole “conflict of rights”-language that was used in the domestic proceedings; there is no weighing here between religious freedom and gender equality.
It remains to be seen what kind of action the Dutch Government will undertake. The Court refuses to mingle: “the Court must refrain from stating any view as to what, if anything, the respondent Government should do to put a stop to the present situation. The Court cannot dictate action in a decision on admissibility” (par. 78). So far, the Government has been extremely reluctant to actually comply with the Supreme Court’s judgment. It had announced its decision to wait for the ruling of the Strasbourg Court; now the waiting-time is up.