Information Note on the Court’s case-law 39

February 2002

Fretté v. France - 36515/97

Judgment 26.2.2002 [Section III]

Article 8

Article 8-1

Respect for private life

Refusal of application for prior approval as a prospective adopter presented by an unmarried homosexual man, on the ground of his “choice of lifestyle”: no violation

Article 6

Civil proceedings

Article 6-1

Fair hearing

Failure to summon to appear at hearing before Conseil d’Etat an unrepresented plaintiff who had no opportunity of seeing the submissions of commissaire du Gouvernement : violation

Facts : The applicant submitted a request for preliminary leave to adopt a child. Following the rejection of his request, he lodged an appeal which was dismissed on the grounds that his “choice of lifestyle” (as an unmarried homosexual) did not appear to be such as to provide sufficient guarantees that he would offer a child a suitable home. The administrative court set aside the decisions, holding that the relevant legislative provisions had been misinterpreted. The administrative authorities appealed against th at judgment to the Conseil d’Etat . The Government Commissioner concluded that the authorities were justified in seeking to have the judgment quashed but stated that the applicant had been denied leave to adopt solely because he was homosexual and, as such, could not provide sufficient guarantees that he would offer a child a suitable home; a decision of that kind amounted to introducing a form of discrimination between prospective adopters which the legislature had not intended – discrimination on the groun ds of choice of private lifestyle. The Conseil d’Etat quashed the judgment and, in a ruling on the merits, dismissed the applicant’s request for preliminary leave to adopt. It held, in particular, that the applicant – despite his personal qualities and apt itude for bringing up children – could not provide sufficient guarantees that he would offer an adopted child a suitable home. The applicant, who had exercised his right under domestic law not to be represented by a lawyer, did not attend the hearing in th e Court of Cassation, as he had not been summoned.

Law : Article 14 taken together with Article 8 – The rejection of the applicant’s request for leave to adopt had not in itself interfered with his right to the free expression and development of his personality or the manner in which he led his sexual life. Ho wever, domestic law authorised any unmarried person to apply to adopt. In refusing the applicant’s request on the ground of his “choice of lifestyle”, the national authorities had implicitly yet undeniably applied a criterion that related decisively to his homosexuality. There had therefore been a difference in treatment based on the applicant’s sexual orientation, a concept which was covered by Article 14, in respect of the right which he had been granted and which fell within the scope of Article 8; accor dingly, the two provisions taken together were applicable. The decisions to refuse preliminary leave to adopt had pursued a legitimate aim, namely protecting the health and rights of children who might be concerned by an adoption procedure. As to whether t he difference in treatment was justified, there was little common ground between the legal systems of the Contracting States in that regard; accordingly, a broad margin of appreciation had to be left to each State. In the instant case the national authorit ies could legitimately and reasonably have considered that the right to be able to adopt asserted by the applicant was circumscribed by the interests of adoptable children. The justification advanced therefore appeared objective and reasonable and there ha d been no discrimination within the meaning of the Convention.

Conclusion : no violation (four votes to three).

Article 6 § 1 – Since the applicant had exercised his right under domestic law not to be represented by a lawyer, he had not been summoned to and had consequently not attended the hearing before the Conseil d’Etat . Requiring the applicant to pay regular visits to the registry of the Conseil d’Etat to check the notice boards to see whether his case was listed for hearing ran counter to the obligati on on States to secure the effective enjoyment of the rights guaranteed by Article 6. In the instant case the applicant had not been able to apprise himself of the Government Commissioner’s submissions as he had not been summoned to the hearing. Nor, since he was unrepresented, had he been able to establish the general tenor of the submissions before the hearing; as a result, he had been denied, in breach of the adversarial principle, an opportunity to reply to them in the form of a note to the court at the deliberations stage.

Article 41 – The Court awarded the applicant EUR 3,500 for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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