Thursday, 31 October 2013

Vallianatos and Others v Greece - Grand Chamber judgment next week

The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of Vallianatos and Others v Greece at a public hearing on 7 November 2013 at 11 a.m. (local time). 

The case concerns 'civil unions' in Greek law, which enable different-sex couples to register an official partnership as an alternative to marriage. 

The applicants complain that civil unions automatically exclude same-sex couples from registering a partnership and thereby violate their rights under the European Convention on Human Rights.

In particular, the applicants complain that:

  • the fact that civil unions are designed only for different-sex couples infringes their right to private and family life under Article 8;
  • and that their exclusion amounts to unjustified discrimination between heterosexual couples and homosexual couples under Article 14.

The Grand Chamber judgment is important because it will be the first judgment by the Court in respect of same-sex civil partnership rights outside of marriage.

In this sense, the judgment addresses a different issue to that raised in previous and on-going complaints about the exclusion of same-sex couples from marriage.

Which way will the Court go?

It is difficult to predict which way the Grand Chamber will vote on this issue. In Schalk and Kopf v Austria the Chamber sidestepped the issue of whether a right to some form of partnership recognition was available to same-sex couples under the Convention (§ 103) and stated that contracting states 'enjoy a margin of appreciation in the timing of the introduction of legislative changes' (§ 105). The Court therefore dismissed the complaint that a lack of legal recognition for same-sex relationships violated both Articles 8 and 14 of the Convention.

However, the Dissenting opinion filed by Judges Rozakis, Spielmann and Jebens in Schalk and Kopf v Austria gives some cause for optimism. These judges criticised the majority decision to find no violation of the Convention in respect of the complaint about no legal framework being available for same-sex couples because it 'endorses the legal vacuum [...] without imposing on the respondent State any positive obligation to provide a satisfactory framework, offering the applicants, at least to a certain extent, the protection any family should enjoy'. They stated:

Today it is widely recognised and also accepted by society that same-sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage [...] would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits.

The central question in Vallianatos and Others v Greece, therefore, is whether the Grand Chamber will accept any of the reasons given by the Greek government for excluding same-sex couples from registering civil union as robust enough to justify a difference in treatment on the grounds of sexual orientation. 

What are the implications of the judgment?

The judgment is important for two reasons:

  • First, the judgment will effectively determine whether same-sex couples have a right under Article 8 to some form of official partnership recognition.
  • Second, the judgment will determine whether states that provide an alternative scheme of partnership recognition to marriage to different-sex couples are obliged to make this available to same-sex couples so as not to violate their Article 14 rights. 

The judgment will therefore have implications for all those contracting states that continue to deny same-sex couples the opportunity to register a partnership. 

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