ECtHR: Romania’s failure to provide any legal recognition of same-sex relationships
violates Article 8 ECHR

Very different dissenting opinions:

PARTLY DISSENTING OPINION OF JUDGE GUERRA MARTINS

1.  I fully agree that there has been a violation of Article 8 of the Convention in the present case.

2.  However, for the reasons set out below I cannot join the majority in concluding, with extremely succinct reasoning, that there is no need to examine the complaint under Article 14 of the Convention taken in conjunction with Article 8, based on § 230 of the judgment in Fedotova and Others ([GC], nos. 40792/10 and 2 others, 17 January 2023).

3.  First and foremost, I firmly believe that discrimination on the ground of sexual orientation is a fundamental aspect of this case and that it should therefore have been addressed.

4.  Secondly, I am fully aware that Fedotova and Others is a judgment of the Grand Chamber, which gives it a certain supremacy over the judgments of the Chambers. In fact, although neither the Convention nor the Rules of Court contain an express provision granting priority to those judgments (indeed, the system of stare decisis is not applicable to the Convention), one can accept that there is a broad consensus in so far as the Convention and the Rules of Court implicitly presuppose that the judgments of the Grand Chamber are to be followed by the Chambers until they are reversed by the Grand Chamber.

5.  Thirdly, that said, it is worth noting that I have already had the opportunity to respectfully disagree with what I consider to be the Court’s restrictive interpretation of Article 14 of the Convention (see, recently, the partly dissenting opinion of Judges Yudkivska, Lubarda, Guerra Martins and Zünd joined by Judge Kūris, in the case of Macatė v. Lithuania (no. 61435/19, 23 January 2023). It is true that the factual situation in the two cases is different, but the rationale behind the finding of no violation of Article 14 in conjunction with Article 10 in Macatė reflects the same restrictive approach to Article 14 as in the present case.

6.  In that opinion we argued precisely that anti-discrimination law has evolved in the past few decades, especially in Europe, and that as a result the Court must adapt its reasoning to the new trends.

7.  Finally, the finding of no violation of Article 14 in Fedotova and Others was not unanimous. Judge Pavli, joined by Judge Motoc, added a partly dissenting opinion whose reasoning, in my humble view, is more accurate than the reasoning of the majority. Therefore, without further explanation, I would say that had I been part of the composition of the Court in Fedotova and Others I would have joined the partly dissenting opinion of my colleagues. Consequently, I cannot accept the finding of no violation of Article 14 in the current case based on Fedotova and Others without expressing my opinion.

8.  Although this does not change anything in the current case, it might pave the way for the future evolution of the Court’s case-law regarding Article 14 of the Convention.

JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND HARUTYUNYAN

1.  We respectfully disagree with the view that the instant applications are admissible and that Article 8 has been violated.

2.  The Court has consistently held that Article 34 does not allow complaints in abstracto alleging a violation of the Convention. The applicants have to show that they are personally affected by the contested legislation (see, for instance, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014).

In the instant case, the applicants pointed to a certain number of shortcomings of the national legislation in several domains. However, in our view, they did not provide sufficient evidence that those shortcomings had affected them personally and, in any event, they did not bring their complaints to the attention of the relevant authorities (with the exception of the proceedings mentioned in paragraph 6). The grievances as formulated by the applicants are reflected in the very concise factual findings. The majority decided to follow the approach of the applicants and to review the applicable legislation in abstracto without looking at the practical difficulties the applicants had actually encountered.

3.  The majority rely on the judgment in the case of Fedotova and Others v. Russia ([GC], nos. 40792/10 and 2 others, 17 January 2023), and refer to it throughout the reasoning. That judgment was rendered in very specific factual circumstances which are characterised by the following three features, as set out in that judgment:

(i)  “The present case concerns the absence in Russian law of any possibility of legal recognition for same-sex couples, regardless of the form such recognition may take” (§ 155, emphasis added).

(ii)  “Nor is it disputed that Russian law has not changed at all since the present applications were lodged …” (§ 193, emphasis added).

(iii)  “The Court notes that the respondent State did not inform it of any intention to amend its domestic law in order to allow same-sex couples to enjoy official recognition and a legal regime offering protection” (§ 194, emphasis added).

4.  The instant case differs from the case of Fedotova and Others v. Russia on all these three counts.

(i)  As explained by the Government, Romanian law provides for some forms of recognition of same-sex couples and protection for them. The majority note in particular the following developments in this regard:

“In this context, the Court takes note of the adoption by Romania of more inclusive legal provisions of a general nature such as Article 1391 of the Civil Code (see paragraph 9 above) and the legislation sanctioning all forms of discrimination (see paragraph 10 above) and of the broader interpretation given by the Constitutional Court to the notion of family life set forth by Article 26 of the Constitution (see paragraphs 15 and 16 above)” (paragraph 77).

We note in this context that the Constitution, as interpreted by the Constitutional Court, protects same-sex couples. Some specific legislative provisions set forth this protection. In particular, Article 1391 of the Civil Code is interpreted as a form of recognition of same-sex couples for specific purposes. Furthermore, European Union law recognises same-sex couples and grants them a series of rights. European Union law is a part of Romanian domestic law and is directly applicable in Romania. In any event, it would have been necessary to carry out a thorough analysis of the domestic law, domain by domain, in order to determine with sufficient precision the legal status of same-sex couples. We also note en passant that in Romania the number of unmarried different-sex couples is growing, which shows that the legal regime provided to unmarried couples does not appear unattractive.

(ii)  The domestic law is changing. The above-mentioned elements have been adopted recently and we note that the case-law, in particular, is expanding the scope of protection provided to non-married couples, whether they are of the same or different sex.

(iii)  The Government have expressed their willingness to amend the legislation.

5.  In the case of Fedotova and Others (cited above), the Court explained the scope of States’ obligations in respect of same-sex couples in the following terms (emphasis added):

“188.  Nevertheless, as is already apparent from the Court’s case-law (see Schalk and Kopf, § 108; Gas and Dubois, § 66; Oliari and Others, § 177; and Chapin and Charpentier, § 48, all cited above), the States Parties have a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples, which does not necessarily have to take the form of marriage (see paragraph 165 above). Indeed, States have the ‘choice of the means’ to be used in discharging their positive obligations inherent in Article 8 of the Convention (see Marckx, cited above, § 53). The discretion afforded to States in this respect relates both to the form of recognition and to the content of the protection to be granted to same-sex couples.

189.  The Court observes in this connection that while a clear ongoing trend is emerging towards legal recognition and protection for same-sex couples, no similar consensus can be found as to the form of such recognition and the content of such protection. Thus, in accordance with the principle of subsidiarity underpinning the Convention, it is above all for the Contracting States to decide on the measures necessary to secure the Convention rights to everyone within their ‘jurisdiction’, and it is not for the Court itself to determine the legal regime to be accorded to same-sex couples (see Christine Goodwin, § 85, and Marckx, § 58, both cited above).”

6.  We note that in the judgment in the case of Fedotova and Others (cited above), the Court, unlike for different-sex couples, leaves a very broad freedom to the States in defining the legal regime for same-sex couples. The underlying idea was to allow the States to adapt their legislation step‑by‑step and domain by domain rather than in a single revolutionary move which might trigger strong opposition and ultimately prove counter-productive. We observe that the Council of Europe expressed the view that while “a considerable number of member states have made substantial progress regarding the legal and social recognition of LGBT persons, albeit often in a challenging context”, “a climate of opposition to LGBT human rights has simultaneously gained ground in certain European countries” (see the CDDH Report on the implementation of Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted by the CDDH at its 92nd meeting (26‑29 November 2019), paragraphs 11‑12).

7.  It is important to note that the judgment in the case of Fedotova and Others (cited above) does not equate legal recognition with registration. States may choose among several possible means of granting legal recognition to same-sex couples. They may either create the possibility for same‑sex couples to register their union (recognition by registration) or grant recognition ex lege in different branches of the law, so that such couples acquire ex lege certain specific rights and obtain their protection (recognition ex lege). What is important – under the approach adopted in Fedotova and Others (cited above) – is that rights and protection are granted ex lege, without the necessity to apply to the domestic courts for protection, so that the couples can rely upon the mere existence of their relationship in dealings with the judicial or administrative authorities (see Fedotova and Others, cited above § 203). The advantage of this second method is that rights are automatically granted to all cohabiting couples and are not restricted to those who choose to register. At the same time, it should be noted that registration does not confer per se broader or stronger rights.

8.  The majority make the following assessment in paragraph 76 of the judgment:

“The Court observes that Romanian law provides for only one form of family union – an opposite-sex marriage and does not provide for legal recognition for same-sex couples (see paragraph 9 above).”

In our view, for the reasons explained above, not only does Romanian law provide for some forms of recognition for same-sex couples, but the scope of this recognition is also expanding.

9.  To sum up, as rightly stated in Fedotova and Others (cited above, § 189):

“…it is above all for the Contracting States to decide on the measures necessary to secure the Convention rights to everyone within their ‘jurisdiction’, and it is not for the Court itself to determine the legal regime to be accorded to same-sex couples …”

For all these reasons, we consider that the respondent State has not violated its obligations under the Convention.

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Summary:

European Court of Human Rights (ECHR) found Tuesday that Romania violated the European Convention on Human Rights article 8’s right to respect for private and family life because of the “absence of any form of legal recognition and protection for same-sex couples.”

The case, Buhuceanu and Others v. Romania arose when Romania rejected the application of 21 same-sex Romanian couples’ request to marry. Under current Romanian law, marriage is only recognized between a man and a woman. Under article 277 section 1 of Romania’s Civil Code, “[s]ame-sex marriage is prohibited.” The couples then filed suit to the court, arguing that Romania’s laws violated their right to respect for their private and family lives and amounted to “discrimination against them on the grounds of their sexual orientation.”

The judgement–which was decided 5 to 2 in favor of the applicants–found that there had been a violation of article 8 of the European Convention on Human Rights by Romania. Article 8 states that “[e]veryone has the right to respect for his private and family life” and that there can be “no interference by a public authority with the exercise of this right except” under narrow considerations.

In its submission, Romania’s government argued that, because majority of the Romanian population are against same-sex unions, to recognize same-sex relationships as legal would be against public interest. It was further submitted that Romanian courts had not yet determined if same-sex couples benefitted from having legally recognized unions, which was contrary to the ECHR’s decision in the case of Oliari and Others v. Italy. That decision found that allowing same-sex unions does not stop opposite-sex marriages from legal recognition. Therefore, there is no legal justification relating to public interest for the absence of legal recognition for same-sex unions.

The court found that Romania’s government’s submissions to the court on grounds of public interest did not prevail “over the applicants’ interest in having their respective relationships adequately recognised and protected by law.

While the standard for non-punitive damages was met, the court did not name an amount. The applicants’ claims for punitive damages were rejected.

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