(...). The Upper Austrian Regional Governor (Oberösterreichischer Landeshauptmann) dismissed the appeal on 18 August 2010, arguing with reference to Schalk and Kopf v. Austria (no. Consequently, the relationship of the applicants, 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.”[2] Although it seems that the ECtHR is prepared to accept the unions of same-sex couples, at the current stage is not willing to enforce the recognition of such unions in any form in all the contracting parties of the council of Europe since it is indicated by the ECtHR itself that this issue is to be dealt with from the national level. In 2002 they asked the competent authorities to allow them to contract marriage, but their request was refused on the grounds that under Austrian law marriage could only be contracted between two persons of opposite sex. The applicants were born in 1962 and 1960, respectively. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. Furthermore, the applicants considered that the reference in Article 12 to "the relevant national laws" could not mean that States were given unlimited discretion in regulating the right to marry. Introduction. 107. 73. As it is currently the case, 16 of the 27 Member States of the European Union have provided with some form of legal recognition of same-sex unions, either in the form of marriage or in that of a civil partnership. A referral would have caused a new strong political battle before the Grand Chamber, coming after the Lautsi and new S.H and others v Austria case. Any views expressed are solely those of the author or publisher and … Further details are yet to be announced but it seems that the proposed registered partnership will aim to offer all couples an alternative and very different option where both the contracting as well as the dissolution of the partnership will consist of much simpler and less bureaucratic processes. As with respect to the Cypriot legislation, article (3)1 of Marriage Law 2003 (104(I)/ 2003) provides that “Marriage means the agreement for union in marriage that is being contracted between woman and man ...” Thus, a same-sex couple cannot contract a marriage in the Republic of Cyprus nor can a marriage of a same-sex couple that has been contracted in another State be recognised under the Cypriot legislation. On the one hand, the Court has held repeatedly that, just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification (see Karner, cited above, § 37; L. and V. v. Austria, cited above, § 45; and Smith and Grady, cited above, § 90). This new institution is, consequently, as a rule only accessible to couples who cannot marry, and the same-sex partnership does not have the same status and the same benefits as marriage. 40. In a number of cases the question arose whether refusal to allow a post-operative transsexual to marry a person of the opposite sex to his or her assigned gender violated Article 12. The Court was aware of the potential implications it would face from the contracting states had Schalk and Kopf v. Austria been referred. Compliance with Article 14 taken together with Article 8. Registered partnership involves co-habitation on a permanent basis and may be entered into between two persons of the same sex having legal capacity and having reached the age of majority (section 3). The Court has been under fire both for usurping too much power and for achieving too little. 9. However, in contrast, all other substantive Articles of the Convention grant rights and freedoms to "everyone" or state that "no one" is to be subjected to certain types of prohibited treatment. 32. 114. 28. The applicants maintained that the heart of their complaint was that they were discriminated against as a same-sex couple. As in the case of spouses, the partner who is in charge of the common household and has no income has legal authority to represent the other partner in everyday legal transactions (section 10). Consequently the relationship of the applicants, 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.". Since the applicants were two men, they lacked the capacity for contracting marriage. The case of Schalk and Kopf v Austria on same-sex unions and the current legal situation of Cyprus 30 January 2013 The ever-evolving case-law of the European Court of Human Rights (ECtHR) has now shifted towards the recognition of new forms of families beyond the heteronormative norms. 82. 12. 2. However, the decision did not provide with further information as to which forms could this facilitation take if marriage is not to be considered as a stable de facto relationship. 13. They always provide a state of the art and 100% reliable legal service in a swift and friendly manner. 113. However, this corresponds on the whole to the trend in other member States (see paragraphs 32-33 above). The Austrian Registered Partnership Act, which entered into force on 1 January 2010, reflects the evolution described above and is thus part of the emerging European consensus. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. In this very important case, the Court, after a careful examination of previous case-law, has taken a major step forward in its jurisprudence by extending the notion of "family life" to same-sex couples. The legal consequences of registered partnership vary from almost equivalent to marriage to giving relatively limited rights. 61. The Court agrees that the issue is sufficiently complex not to be susceptible of being resolved at the admissibility stage. A child born out of such a relationship is ipso jure part of that "family" unit from the moment and by the very fact of his birth (see Elsholz v. Germany [GC], no. In their oral pleadings, reacting to the introduction of the Registered Partnership Act, the applicants argued that the remaining differences between marriage on the one hand and registered partnership on the other were still discriminatory. Its section 2 provides as follows: "A registered partnership may be formed only by two persons of the same sex (registered partners). Article 9 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and entered into force on 1 December 2009, reads as follows: "The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.". It is undisputed in the present case that the relationship of a same-sex couple like the applicants' falls within the notion of "private life" within the meaning of Article 8. 69. The non-governmental organisations answered that question in the affirmative: firstly, excluding same-sex couples from particular rights and benefits attached to marriage (such as for instance the right to a survivor's pension) without giving them access to any alternative means to qualify would amount to indirect discrimination (see Thlimmenos v. Greece [GC], no. 54. That situation obtained until 1 January 2010, when the Registered Partnership Act entered into force. 86. Additionally, Cypriot legislation does not include any provisions for the recognition of registered partnerships and accordingly a registered partnership of a same-sex couple cannot be accepted as a recognised union in order to be regulated under the Marriage Law 2003 (104(I)/ 2003) of the Republic of Cyprus. 66. 56. 3. 7. According to the information available to the Court, the vast majority of the States concerned have introduced the relevant legislation in the last decade. These included, inter alia, different age of consent under criminal law for homosexual relations (L. and V. v. Austria, nos. As to the applicability of Article 8, the third-party Government submitted that although the Court's case-law as it stood did not consider same-sex relationships to fall within the notion of "family life", this should not be excluded in the future. The rules on the establishment of registered partnership, its effects and its dissolution resemble the rules governing marriage. In a constitutional complaint the applicants alleged that the legal impossibility for them to get married constituted a violation of their right to respect for private and family life and of the principle of non-discrimination. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in treatment of persons in relevantly similar situations. Although differences based on sexual orientation required particularly weighty reasons, no such reasons had been given by the Government. Held, rejecting the complaint, that there is no breach of Article 12 where marriage is available to two people of the … They noted that the question had been left open in Karner (cited above, § 33). The Court starts from its findings above, that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. They argued that in the event that one partner in a homosexual couple died, the other was discriminated against since he would be in a much less favourable position under tax law than the surviving partner in a married couple. As the respondent Government as well as the third-party Government have rightly pointed out, the present case has to be distinguished from Christine Goodwin. 81 . Regarding the justification for that difference in treatment, the third-party Government contested the applicants' argument drawn from the Court's Karner judgment. We have been working with Antonis Paschalides & Co LLC law firm for over 30 years now on many different projects (reviewing of contracts, corporate matters, employment law issues, representation before the European Court of Justice on the Cyprus bail in cases just to name a few). It followed from the Court's Karner judgment (cited above, § 40) that the protection of the traditional family was a weighty and legitimate reason, but it had to be shown that a given difference was also necessary to achieve that aim. A registered partnership must not be established between close relatives or with a person who is already married or has established a still valid registered partnership with another person (section 5). Having regard to the conclusion reached above, namely that Article 12 does not impose an obligation on Contracting States to grant same-sex couples access to marriage, Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either. 1. In contrast, the Court's case-law has only accepted that the emotional and sexual relationship of a same-sex couple constitutes "private life" but has not found that it constitutes "family life", even where a long-term relationship of cohabiting partners was at stake. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. 72. The case originated in an application (no. Reliable legal service in a swift and friendly manner, Practical and cost effective advice in a friendly manner. The Government have made it clear that the Registered Partnership Act was introduced as a matter of policy choice and not in order to fulfil an obligation under the Convention (see paragraph 80 below). In two States, namely in Ireland and Liechtenstein reforms intending to give same-sex couples access to some form of registered partnership are pending or planned. 46. Previous Document. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes (see Courten, cited above; see also M.W. 26. The Court therefore considers that this complaint has not been substantiated. Moreover, Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms reserved the right to contract marriage to persons of different sex. Others, like the Nordic countries, have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e. 1. Antonis Paschalides & Co LLC law firm has worked with us in the last two years on a number of our portfolio companies (provision of fiduciary – corporate – legal services) and we have been impressed by the quality of its consultants, the impact of their work, the honest and reliable services and their professional approach in a number of cases. In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage. However, it does not enable the Court to force states to legislate in favour of same-sex marriage. According to the Court's established case-law Article 12 secures the fundamental right of a man and woman to marry and to found a family. The applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic, cited above, § 38). In addition, he referred to the Administrative Court’s case-law according to which it Consequently, Article 14 taken in conjunction with Article 8 applies. The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues. 3. The provision has been unchanged since its entry into force on 1 January 1812. "New Families"? 27. The applicants subsequently lodged a constitutional … In addition, third-party comments were received from the United Kingdom Government, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 1. In conclusion the Court found that the impossibility for a post-operative transsexual to marry in her assigned gender violated Article 12 of the Convention. Facts. 84. The commentary to the Charter, which became legally binding in December 2009, confirms that Article 9 is meant to be broader in scope than the corresponding articles in other human rights instruments (see paragraph 25 above). The justification for that particular difference in treatment between different-sex and same-sex couples was laid down in Article 12 of the Convention itself. 67. UNHCR is not responsible for, nor does it necessarily endorse, its content. The case originated in an application (no. 30. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950. Moreover, regard must be had to the historical context in which the Convention was adopted. (Application no. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. In 2010, the ECtHR ruled on the case Schalk and Kopf v. Austria. In these circumstances, the Court is satisfied that the applicants complied with the requirement of exhausting domestic remedies. In sum, there are nineteen member States in which same sex couples either have the possibility to marry or to enter into a registered partnership (see also the overview in Burden v. the United Kingdom [GC], no. 35. 43546/02, § 92, ECHR 2008-..., and Christine Goodwin, cited above, §§ 74-75). addy43999d14c1a9cb7cd08930e6a6aa752d = addy43999d14c1a9cb7cd08930e6a6aa752d + 'paschalides' + '.' + 'com'; No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. Given that at present it is open to the applicants to enter into a registered partnership, the Court is not called upon to examine whether the lack of any means of legal recognition for same-sex couples would constitute a violation of Article 14 taken in conjunction with Article 8 if it still obtained today. The lack of any legal framework before the entry into force of the Registered Partnership Act ("the Act") raises a serious problem. var addy43999d14c1a9cb7cd08930e6a6aa752d = 'info' + '@'; 108. In 2002 Mr Schalk and Mr Kopf have requested the competent authorities in Austria to allow them to contract a marriage as a same-sex couple. It is "subject to the national laws of the Contracting States", but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see B. and L. v. the United Kingdom, no. 104. The Court has dealt with a number of cases concerning discrimination on account of sexual orientation. 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