Greece’s exclusion of same-sex couples from civil unions breaches prohibition of discrimination and right to privacy and family life

Vallianatos v Greece [2013] ECHR, Applications nos. 29381/09 and 32684/09 (7 November 2013)

Summary

Greece introduced ‘civil unions’ as an official form of partnership other than marriage for different-sex couples only.

The applicants challenged the civil union law on the basis that it breached the prohibition on discrimination on the basis of sexual orientation and the right to respect for privacy and family life under the European Convention on Human Rights (Convention). The European Court of Human Rights (ECtHR) held that the law’s differential treatment of same-sex couples was not proportionate to the aims of protecting marriage and the family “in the traditional sense”. The law therefore breached Article 8 in conjunction with Article 14 of the Convention.

Facts

The seven applicants were three sets of same-sex couples, and one not-for-profit organisation whose principal aims was to provide psychological and moral support to gays and lesbians.

The applicants complained about legislation introduced by the Greek Government that created civil unions for different-sex couples. The key aims of the legislation were to:

• protect children born outside marriage;
• protect single-parent families;
• respond to the wishes of parents to raise their children without being obliged to marry; and
• ultimately, strengthen the institutions of “marriage and the family in the traditional sense”.

This factual scenario was unusual in that Greece was one of only two Council of Europe countries to have introduced a legal partnership other than marriage which excluded same-sex couples. The entry into a civil union had consequences for financial and maintenance obligations, parental responsibility and inheritance rights upon dissolution of the partnership. The law also introduced a presumption of paternity of any child born during the civil union.

During the parliamentary debate surrounding the introduction of the laws, the National Human Rights Commission had warned that the law was discriminatory, and recommended extending the scope of civil unions to include same-sex couples.

Decision

Admissibility

The Government argued that the couples’ claims were inadmissible because they did not suffer direct and immediate adverse consequences as a result of being excluded from entering into civil unions. The Government maintained that the couples were free to regulate maintenance, inheritance and other issues by means of a will or contract, and in any case, that the harm they claimed to have suffered was merely hypothetical. The ECtHR rejected this argument, holding that the law prevented the couples from organising their relationship according to the legal arrangements laid down by the law. As such, they were ‘victims’ as they had a legitimate personal interest in seeing the law “brought to an end”.

However, the Court held that the organisation that supported gays and lesbians was not considered to be a direct or indirect ‘victim’, and so its claim was inadmissible.

The Court also rejected the Government’s claim that the couples could have brought a domestic action for compensation thereby challenging the constitutionality of the law, and therefore had failed to exhaust domestic remedies. The Court considered that a mere award of financial compensation “would not appear capable of remedying their grievances”, and that even if successful, Greece would not have been obliged to amend the law.

Merits

The couples claimed discrimination on the grounds of sexual orientation in the sphere of private and family life, in violation of Article 14 in conjunction with Article 8 of the Convention. The Court emphasised that the claim was based on the introduction of an allegedly discriminatory law, and that it was not argued that Greece had failed to comply with any positive obligations under the Convention.

The Court noted that the same-sex couples were in a comparable situation to different-sex couples in relation to their need for legal recognition and protection of their relationship, thereby rejecting the Government’s argument that the ability to have biological children justified limiting civil unions to different-sex couples. The Court affirmed that the law’s different treatment based on sexual orientation required “particularly convincing and weighty reasons” by way of justification.

The Court stated that it considers it legitimate for the legislature to enact legislation that “indirectly strengthens the institution of marriage” by promoting the notion that the decision to marry would be taken “purely on the basis of a mutual commitment entered into by two individuals, independently of outside constraints or of the prospect of having children”. The Court then recognised that protection of the family “in the traditional sense” was, “in principle, a weighty and legitimate reason which might justify a difference in treatment”. Given this focus on marriage, it may be that the Court uses the term family “in the traditional sense” to refer to protection of the family founded on a “union of a man and a woman”, as appeared to be the case in an earlier decision, Kozak v Poland, cited by the Court in support of this proposition.

The Court also held that the protection of the interests of the child could be a legitimate aim. The Court therefore went on to consider whether the differentiation in this case was proportionate to these aims.

The legislation went beyond the achievement of the Government’s stated objectives, and was designed principally to afford legal recognition to a form of non-marital partnership. Importantly, though the Government had emphasised the situation of different-sex couples with children, the law was not restricted to arrangements in relation to children. The Court held that the Government had not justified the difference in treatment between same-sex and different-sex couples who were not parents. The Court also affirmed that as official partnerships, civil unions had intrinsic value for the applicants irrespective of their legal effects. Further, as same-sex couples were also excluded from marriage under Greek law, they had a particular interest in the legal recognition that was afforded by civil unions.

As a consequence, the ECtHR found that there had been a violation of Article 14 in conjunction with Article 8, as the Greek Government’s reasons for introducing the law did not justify the exclusion of same-sex couples. The Government was ordered to pay each applicant EUR 5,000 by way of damages.

Commentary

While this decision rejects attempts to justify the exclusion of same-sex couples, it is concerning that the Court appears to accept that protection of the ‘traditional family unit’, or of the institution of marriage between a man and a woman might justify a difference in treatment. This reasoning could be seen as supporting discrimination against same-sex couples, despite the Court’s recognition that same-sex relationships fall within the notion of ‘family life’ in Article 8.

Legal recognition of same-sex couples’ relationships is a hot topic once again in Australia following the High Court of Australia’s decision in the ‘same-sex marriage case’ on 12 December 2013 (Commonwealth v Australian Capital Territory [2013] HCA 55).

In contrast with this case, the Australian case was an argument between two Government parties about the compatibility of the ACT’s law allowing same-sex marriage with the Federal Marriage Act and validity under the Australian Constitution, rather than a question of compatibility with human rights.

The High Court in Commonwealth v ACT held that the Federal Government has the power to legislate for same-sex marriage, even though it has not yet done so. Though many European States have chosen to legislate for marriage or a form of civil partnership for same-sex couples, international human rights law does not necessarily create a positive obligation on States to recognise same-sex marriage (for example, see the 2002 Human Rights Committee case of Joslin v New Zealand), although this issue would hopefully be decided differently by the UN Human Rights Committee today. Greece violated the European Convention because it had elected to introduce discriminatory form of civil partnership, and not because it had failed to legislate for same-sex marriage.

It is also interesting to note the role that LGBTI advocacy organisations were permitted to play in both Vallianatos and in the Commonwealth v ACT case. Though the ECtHR did not allow the gay and lesbian support organisation to participate as an applicant in Vallianatos as it was not a ‘victim’, the ECtHR did permit several third-parties to intervene in the written procedure, including the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association. In Commonwealth v ACT, the High Court granted Australian Marriage Equality, represented by the HRLC, leave to appear as a ‘friend of the court’, which is a role more akin to the third-party interveners in Vallianatos.

The decision can be found at http://www.bailii.org/eu/cases/ECHR/2013/1110.html

Louise Brown is a Lawyer at King & Wood Mallesons currently on secondment with the Human Rights Law Centre.