Judgment 23.5.2023 [Section IV]
Respect for family life
Respect for private life
Absence of any form of legal recognition and protection for same‑sex couples: violation
Facts – The applicants (twenty-one same-sex couples) are in committed same-sex relationships. The authorities rejected each couple’s notice of their intention to marry as their requests were considered contrary to the Civil Code.
In 2018 the applicants in application no. 20081/19 lodged a complaint with the courts against several administrative decisions issued by the health insurance authorities denying their right to co-insured status under their respective partner’s health insurance contracts. After several courts declined jurisdiction, the case was registered on the list of the Court of Appeal, which, in June 2019 suspended the proceedings awaiting the Constitutional Court’s decision on its request for interpretation of several provisions of the domestic law on healthcare reform. Those proceedings were still pending at the time of the Court’s judgment.
Law – Article 8:
(1) Applicability – The facts of the present case fell within the scope of the applicants’ “private life” and “family life”. Article 8 was thus applicable under both these aspects.
(2) Merits – The general principles concerning a member States’ positive obligations and its margin of appreciation in cases similar to the present one had been set out most recently in the Grand Chamber judgment in the case of Fedotova and Others v. Russia [GC]. In the light of those principles, the Court had to ascertain whether the respondent State had satisfied its positive obligation to secure recognition and protection for the applicants’ relationships.
Domestic law provided for only one form of family union, an opposite-sex marriage The respondent State had not informed the Court of any intention to amend it in order to allow same-sex couples to enjoy official recognition and a legal regime offering protection. Therefore, the situation in the respondent State differed markedly from the situation in a substantial number of States Parties which had sought to amend their domestic law with a view to ensuring effective protection of the private and family life of same-sex partners. In this context, the Court took note of the adoption by Romania of more inclusive legal provisions of a general nature and of the broader interpretation given by the Constitutional Court to the notion of family life set forth in the Constitution. Nevertheless, the Government’s statement that they took into account the benefits attached to some form of civil partnerships for same-sex couples was not supported by evidence of actual steps taken towards any form of legal recognition for such couples.
In the absence of official recognition, same-sex couples were nothing more than de facto unions under Romanian law, the partners being unable to regulate fundamental aspects of their life as a couple such as those concerning property, maintenance and inheritance as an officially recognised couple. Nor were they able to rely on the existence of their relationship in dealings with the judicial or administrative authorities. In sum, the applicants had a particular interest in obtaining the possibility of entering into a form of civil union or registered partnership in order to have their relationships legally recognised and protected – in the form of core rights relevant to any couple in a stable and committed relationship – without unnecessary hindrance. Consequently, the Romanian legal framework, as applied to the applicants, could not be said to provide for the core needs of recognition and protection of same-sex couples in a stable and committed relationship.
The Government had argued that the majority of Romanians disapproved of same-sex unions. The Court had already rejected such arguments concluding that the allegedly negative, or even hostile, attitude on the part of the heterosexual majority could not be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law.
The Government had also alleged that, contrary to the case of Oliari and Others v. Italy, the question of whether same-sex couples should benefit from legal recognition had not been, thus far, answered favourably by the highest judicial authorities in Romania. The Court noted that in July 2018, the Constitutional Court had found that people of the same sex who had formed stable couples had the right to express their personality within those relationships and to benefit, in time and through the means provided by law, from the legal and judicial recognition of the corresponding rights and duties. Proposals to amend the provisions governing the notion of family in the Constitution to restrict it to opposite-sex couples had, so far, not been followed. In this context, the Constitutional Court had clarified that the notion of family had a much broader legal content that included the relationship between a same-sex couple. Moreover, the Court could not discern any risks for the institution of marriage – as stipulated by the domestic legal framework – that the affording of legal recognition and protection to same-sex unions might involve, since it did not prevent opposite-sex couples from entering marriage, or from enjoying the benefits that marriage gave. Therefore, those arguments could not justify the absence of any form of legal recognition and protection for same-sex couples in the present case.
As regards the Government’s arguments concerning the breadth of the margin of appreciation, the Court had already held that the States Parties’ margin of appreciation was significantly reduced when it came to affording same-sex couples the possibility of legal recognition and protection. Nevertheless, they had a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples. It was in that latter context that Romania’s social and cultural background might be taken into account.
In the light of the above, none of the public-interest grounds put forward by the Government prevailed over the applicants’ interest in having their respective relationships adequately recognised and protected by law. In conclusion, the respondent State had overstepped its margin of appreciation and had failed to comply with its positive obligation to secure the applicants’ right to respect for their private and family life.
Conclusion: violation (five votes to two).
Article 41: finding of a violation sufficient just satisfaction in respect of non‑pecuniary damage; claim for pecuniary damage rejected.
(See Oliari and Others v. Italy, 18766/11 and 36030/11, 21 July 2015, Legal summary; Fedotova and Others v. Russia [GC], 40792/10 et al., 17 January 2023, Legal summary)