European court rules Romania and Ukraine must recognize same-sex couples

Romania's Palace of the Parliament.
The European Court of Human Rights ruled against Romania on May 23.
Wikimedia Commons/European People’s Party

The Fourth and Fifth Sections of the European Court of Human Rights have issued rulings in recent weeks finding that Romania and Ukraine violated the European Convention on Human Rights by failing to provide any form of legal recognition and protection for same-sex couples. The decision against Romania was issued on May 23. The decision against Ukraine was issued on June 1.

In both cases, same-sex couples living in these countries attempted to marry but their attempts were rejected by local officials, leading to unsatisfactory efforts to get local courts to rule against the governments. The governments invoked public opposition to marriage equality and argued that same-sex couples could enter into contracts that would deal with some of the issues they were raising. Both governments asserted that the issue of civil unions for same-sex partners was being studied and had reached various stages of serious consideration, but in neither country was affirmative legislative action imminent. The governments argued that under the concept of “margin of appreciation” recognized under European Convention case law, they should not be compelled to provide marriages or civil unions for same-sex couples affording the same rights enjoyed by married different-sex couples.

Each section of the court consists of seven judges from countries that are parties to the Convention, plus a section registrar. The section courts in these two cases contained no overlap in membership, thus the end product is the work of 14 judges and two deputy registrars. Although there were some differences in reasoning, the courts’ opinions in both cases embraced similar reasoning.

Two articles of the European Convention are brought into play by these cases, Articles 8 and 14.

Article 8 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article Fourteen provides that “The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.”

Past interpretation of these articles has made clear that the right to form a family and to have their families respected by their national government is an essential element of Article 8, and that discrimination because of sexual orientation comes within the prohibited grounds of discrimination under Article 14. The European Court has yet to conclude, however, that Articles 8 and 14, either individually or considered in conjunction with each other, require states that are parties to the convention to open up the right to marry to same-sex couples. This is largely due to the political realities of getting buy-in to a European civil rights convention in so diverse a continent as Europe when it comes to national history and culture, religious views, forms of government, and development of public opinion. Thus, the court tends to move by consensus, especially on controversial issues in which social evolution has moved at different speeds in different countries.

As of now, in general, Western Europe and Scandinavia have moved towards broad acceptance of LGBTQ equality, while Central and Eastern Europe have been slower to evolve. In terms of identifying a consensus position finding widespread support, the ECHR has gotten to the point of expecting that member nations will find a way to provide some sort of legal recognition for same-sex couples who wish to form a recognized family that is entitled to the benefits accorded families under national laws. Most recently, cases from Russia and Italy have made these points, and earlier cases from Austria and Germany have marked significant advances. In the case of Germany, recognition of civil unions evolved into full marriage recognition.

To these now can be added the decisions concerning Romania and Ukraine, although there are some distinctions between the two.

For example, in response to efforts by local activists and a significant swing in public opinion as local media have mentioned the role that LGBTQ people are playing in the defense of their country against the Russian invasion, there is now majority support in Ukraine, according to pollsters, for civil unions for same-sex couples. Public opinion in Romania is not so far advanced. In both countries, legislative proposals have been introduced and referred for study. In both countries, a different-sex definition of marriage is imbedded in the national constitution, standing as impediments to legislative action without constitutional amendments.

The government of Ukraine seems poised to take action but points out that amendment of the Constitution cannot be undertaken while the nation is on a wartime footing. The necessary procedures cannot be carried out during the present emergency. The government of President Zelenskiy has come around to being generally supportive of the concept of civil unions, but urges patience. The Romanian government is less receptive. At the level of individual leaders, one can find statements condemning discrimination, and it may be that in both countries legislative will is several steps behind public opinion, just as appears to be the case in the United States during the current frenzied debates about anti-transgender measures in state legislatures and the continuing failure of Congress to pass the Equality Act despite widespread public support for it.

In the Romania case, Buhuceanu and Others v. Romania, the majority of the court focuses solely on Article 8, and concludes that the present lack of any legal recognition does not comply with the country’s Article 8 Convention obligations concerning respect for private and family life. The court noted that Rumania “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,” but instead that the government insisted that it had “prevailing interests” placing it within the margin of appreciation, and that it did recognize some aspects of “family life” for same-sex couples. “Nevertheless,” wrote the court, “the Court considers that the Government’s statement that they take into account the benefits attached to some form of civil partnerships for same-sex couples is not being supported by evidence of actual steps taken towards any form of legal recognition for such couple.

“Therefore, the Court can conclude in the present case, that in the absence of official recognition, same-sex couples are 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 recognized couple.” Indeed, after reciting various ways the existing law falls short, “the Court concludes that the Romanian legal framework, as applied to the applicants, cannot be said to provide for the core needs of recognition and protection of same-sex couples in a stable and committed relationship,” and the court found unconvincing the government’s purported justification for the existing legal framework.

Ultimately, the court held that the margin of appreciation for failing to provide any recognition was narrow, albeit broader when it came to the state’s determination of how to address the issue. Civil unions could suffice.

The court decided that having ruled in favor of the applicants under Article 8, it was not necessary to examine Article 14 separately or in conjunction with Article 8. This drew a partial dissent from one judge, who thought Article 14 should have been drawn into the decision. Two members of the court dissented from the Article 8 ruling, finding that the applicants had fallen short from providing the proof of personal harm that would give them standing to bring this challenge. Consequently, the vote was 5-2 to find a violation of the Convention under Article 8.

By contrast, the Fifth Section’s ruling on Ukraine was unanimous and addressed both Articles 8 and 14.

The plaintiffs in Maymulakhin and Markiv v. Ukraine, are a same-sex male couple who have lived together since 2010. They attempted to marry in 2014 but the authorities rejected their application under the Constitution and the Family Code. With the outbreak of war, one of the men enlisted in the National Guard and reported for duty. “Having replied in the negative to his superiors’ question whether he had a wife,” wrote the court, “he was informed that in the event of his death it was his mother who would be notified.” Indeed, the court noted that in because his partner was not his legal spouse, he would not be entitled to notification of injuries or hospitalization, to visit his partner in a military hospital or play any role in making treatment decisions, and he even would be unable to claim the body in the event of the death of his partner. After a few months of service, the soldier suffered a heart attack, had heart surgery, and was put on medical leave, at which time the men were finally reunited. Earlier this year he resigned from the National Guard for health reasons. The relationship of the men was not recognized through this ordeal.

As noted above, Ukraine is further along than Romania in addressing the issue. Indeed, a civil union law has been drafted, and the leaders of the national government are supportive, but wartime conditions pose a barrier to undertaking the necessary referendum to amend the constitution to make it possible to enact the law. In principle, however, the government accepts the applicants’ argument that formal legal recognition and rights are needed, and public opinion, evidenced by a formal petition with 25,000 signatures obligating the President to address the issue, taken together with public opinion polling, shows that there is majority sentiment in Ukraine now for recognizing same-sex couples through the device of a civil union law.

The court pointed out that previous decisions have already concluded that discrimination because of sexual orientation violates Article 14. “The Court has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” wrote the court. “It has repeatedly held that, just like differences based on sex, differences based on sexual orientation require ‘particularly convincing and weighty reasons’ by way of justification. Differences based solely on considerations of sexual orientation are unacceptable under the Convention.”

“The Court has observed in its case-law that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships and that they have the same needs in terms of mutual support and assistance. Accordingly, it is now a settled principle of the Court’s case-law that same-sex couples are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.”

Although the court hasn’t interpreted Article 8 as imposing a “positive obligation” on states to make marriage available to same-sex couples, observed the court, “it has confirmed that in accordance with their positive obligations under that provision, the member States are required to provide a legal framework allowing same-sex couples to be granted adequate recognition and protection of their relationship. The Court has also held that Contracting States enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples.”

Applying these general principles, the court found that Ukraine “has failed to provide any justification for treating the applicants differently as a couple as compared with different sex couples. The Court concludes that the difference in treatment in the present case, which consisted in the unjustifiable denial to the applicants as a same-sex couple of any form of legal recognition and protection as compared with different-sex couples, amounts to discrimination against the applicants on the grounds of their sexual orientation,” so there is a violation of Article 14 “taken in conjunction with Article 8.”

Unfortunately, the ECHR does not have authority to order contracting states to amend their constitutions or repeal, amend or adopt legislation. Its authority is limited to declaring violations of the Convention and awarding damages and costs to injured parties. In the Romania case, Section 4 determined by majority vote that “the finding of a violation of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants,” so does not award any monetary damages, having not been presented with sufficient evidence of actual monetary losses. In the Ukraine case, however, Section 5 concluded that the gay male couple who brought the case are entitled to damages. It awarded them 32 euros as compensation for legal fees they incurred in making wills that would not have been necessary to protect each other had they been married, 5,000 euros to each of them “in respect of non-pecuniary damages,” and 4,000 euros to the couple jointly “in respect of costs and expenses” to be paid into the bank account of their lawyer. The court also awarded some interest to cover the time between its announcement of the judgment and the settlement of accounts by Ukraine.

Both countries can seek to have a “Grand Chamber” of the Court, consisting of a larger number of judges, to consider objections they might raise to these decisions, but as these rulings are consistent with prior Grand Chamber rulings on the question of same-sex couple rights, they decisions are likely to be upheld if challenged.