European Court of Human Rights: “a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.”
Today the European Court of Human Rights delivered its judgement in the case of Schalk and Kopf v. Austria and ruled that Austria did not breach Article 12 (right to marry) by not allowing a same-sex couple to marry.
Nevertheless, three out of the seven judges were of the opinion that there was a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right for respect for private and family life) and that Austria had an obligation to introduce a registered partnership law before 1 January 2010.
On a positive note, the Court acknowledged “a rapid evolution of social attitudes towards same-sex couples had taken place in many member states and a considerable number of states had afforded them legal recognition”.
ILGA-Europe welcomes a conclusion by the Court that “a cohabiting same-sex couple living in a stable partnership, fell within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would” in line with the intervention of Prof. Robert Wintemute on behalf of ILGA-Europe. This represents a shift in the reasoning of the Court, as it is the first time that the European Court of Human Rights referred to same-sex unions as families for the purpose of Article 8 (right for respect for private and family life) of the European Convention of Human Rights.
The Court also made an important reference to the EU Charter of Fundamental Rights and stressed that its Article 9 on the right to marry does not refer to men and women. The Court then said that it "would no longer consider that the right to marry enshrined in Article 12 [of the Convention] must in all circumstances be limited to marriage between two persons of the opposite sex".
Martin K.I. Christensen, Co-Chair of ILGA-Europe’s Executive Board, said:
“Today’s judgement reflects an emerging European consensus. As more and more countries provide legal recognition for same-sex partners, Europe as a whole is gradually moving towards full equality for same-sex families. We are disappointed that on this occasion the Court employed a less proactive approach and limited itself to stating that the issue is within the legal competence of individual countries.
Having said that, we believe the Court made various important statements which will eventually serve to advance legal rights for same-sex families. We hope that in a near future the Court will more forward in recognising equal enjoyment of the rights guaranteed by the European Convention on Human Rights by same-sex couples”.
ILGA-Europe, the FIDH (Federation Internationale des Ligues des Droits de l'Homme), the International Commission of Jurists, and the AIRE Centre (Advice on Individual Rights in Europe) contributed joint written comments and an oral submission by Prof. Robert Wintemute (25 February 2010).