The European Court of Human Rights: Advancing Legal Recognition of Same-Sex Couples across Europe?

Published on 4 Jul 2024

Carlos Santaló Goris

A. Legal recognition of same-sex couples: a fragmented scenario across Europe

When it comes to the recognition of same-sex couples, an East–West division can still be observed in Europe. Most countries in Western Europe have expanded the institution of marriage to same-sex couples. On the contrary, among countries of the former Socialist bloc, same-sex marriage is rather the exception. To the present day, only Estonia and Slovenia allow same-sex couples to get married. Some give a different recognition in the form of registered partnerships or cohabitation agreements. However, in several Eastern European countries, same-sex couples lack any formal recognition. These countries have become fertile land for the European Court of Human Rights (ECtHR) to explore whether or not providing any legal recognition to same-sex couples can amount to a violation of the European Convention on Human Rights (ECHR). Only in 2023, the ECtHR rendered five judgments on this issue.

Against this background, this post has two objectives. On the one hand, it aims at providing a comprehensive analysis of the evolution of the ECtHR case law concerning the recognition of same-sex couples. On the other hand, it is designed to explore in what manner the ECtHR decisions have impacted the recognition of same-sex couples at the national level.

B. The ECtHR’s evolving approach towards same-sex couples

The ECtHR’s views on the protection of same-sex couples under the ECHR have evolved over the years. From an initial reluctance to grant any sort of protection, the ECtHR moved towards a more inclusive approach, calling for legal recognition of same-sex couples. This evolution is not accidental and breeds from the societal changes in the perception of homosexuality. The following subsections re-enact such evolution, focusing on a selected number of ECtHR judgments that reflect a change in the Court’s approach.

I. The initial approach: same-sex couples do not constitute ‘family life’

The first cases in which the protection of same-sex couples was examined under the light of the ECHR can be traced back to the early 1980s. In X and Y v. The United Kingdom, the European Commission of Human Rights was asked to determine whether the deportation of a Malaysian in a relationship with a UK national would interfere with the right to respect family life under Article 8 of the ECHR. The European Commission of Human Rights argued that ‘despite the modern evolution of attitudes towards homosexuality’ such relationship ‘did not fall within the scope of the right to respect for family life’. The ECtHR also adopted a restrictive notion of marriage. In Rees v. United Kingdom, a 1986 case concerning the claim of a female-to-male transexual to legally change their gender, the ECtHR stated that marriage should be understood in a traditional sense between persons of the biological opposite sex (para. 49).

This restrictive approach towards the notion of family would persist for almost three decades. As of 2001, the ECtHR reiterated that a same-sex couple ‘does not fall within Article 8 in so far as that provision protects the right to respect for family life’ (Mata Estevez v. Spain, p. 4).

II. Same-sex marriage reaches the ECtHR: Schalk and Kopf v. Austria

It took more than 30 years for the ECtHR to adopt a more inclusive approach towards same-sex couples. Such change would come with the case Schalk and Kopf v. Austria. The roots of the case can be found in Austrian legislation preventing same-sex couples from marrying. Mr Schalk and Mr Kopf considered that such restriction amounted to a violation of Article 12 of the ECHR, which covers the right to marry between ‘men and women’. Additionally, they argued that there had been a violation of Article 8, which covers the right to a family life in conjunction with Article 14, which enshrines the prohibition of discrimination. In other words, the applicants maintained that the different treatment given by Austrian legislation to same-sex couples was discriminatory, violating their rights to a private life and family life.

In essence, the ECtHR found no violation of the referred provisions. It determined that the Contracting States had the discretion to decide whether or not they allow same-sex couples to marry (para. 61). Therefore, Austria was entitled to preclude access to marriage to opposite-sex couples. In its ruling, the ECtHR highlighted the lack of a ‘European consensus regarding same-sex marriage’ and back then, ‘no more than six out of forty-seven Convention States allow same-sex marriage’ (para. 58).

On a more positive note for same-sex couples, the ECtHR acknowledged for the first time that these could constitute family life. Obiter dictum, the ECtHR acknowledged ‘emerging European consensus towards legal recognition of same-sex couples’, which had to be regarded ‘as one of evolving rights with no established consensus’ (para. 105). All in all, the ECtHR appeared to imply that its position towards same-sex couples might evolve along with the progressive trend to recognise same-sex couples across Europe.

III. From Vallianatos and others v. Greece to Orlandi and others v. Italy

Schalk and Kopf were followed by three cases in which the ECtHR explored same-sex couples’ right of access to other forms of legal recognition different from marriage, such as civil unions. The first case was Vallianatos and Others v. Greece. In 2006, Greece introduced a civil partnership regime only for opposite-sex couples. Several same-sex couples considered that limitation as discriminatory, amounting to a violation of Articles 8 and 12 of the ECHR. The ECtHR stood in favour of same-sex couples, determining that their exclusion from the civil partnership regime was unjustified. The Greek government argued that same-sex couples could, outside the civil union, de facto regulate the relationship on a contractual basis. Against this argument, the ECtHR highlighted that ‘an officially recognised alternative to marriage has an intrinsic value for the applicants irrespective of the legal effects’ (para. 81).

The Vallianatos case was followed by two cases that brought the ECtHR the possibility of exploring whether the lack of any legal recognition for same-sex couples in Italy amounted to a violation of the ECHR. Unlike Greece, Italy did not have a civil partnership regime available for opposite-sex couples. In Oliari and Others v. Italy, several Italian couples complained that the fact that Italian legislation did not provide them with any recognition amounted to a violation of Article 8 of the ECHR. Reaching a similar outcome to the one in Vallianatos, the ECtHR determined that the Italian government ‘failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions’ (para. 185). The ECtHR took into consideration the fact that the Italian Constitutional Court had already called to give same-sex couples legal recognition (para. 180), and the existence of polls showing that a significant majority of Italian society was favourable to such a recognition (para. 144).

The second Italian case (Orlandi and others v. Italy) had a different background from Oliari. Several same-sex couples asked Italy to recognise their marriages contracted outside Italy. After Italian authorities refused to register such marriages, the couples brought a complaint against Italy before the ECtHR. They argued that there had been a violation of Article 8 (right to privacy and family life) along with Article 14 (non-discrimination), as well as Article 12 (right to marry) along with Article 13. The ECtHR would only examine the potential violation of Article 8. The ECtHR primarily relied on what it ruled in Schalk and Kopf and Orlandi. As in Schalk and Kopf, Article 12’s definition of marriage did not cover same-sex couples (para. 192). However, as in Orlandi, the Court considered that the lack of legal recognition of same-sex couples amounted to an infringement of Article 8 (para. 210). Paradoxically, by the time the ECtHR rendered its judgment, the Italian legislature had already approved an act on civil unions accessible to same-sex couples. Nonetheless, for the ECtHR this was irrelevant since at the time the couples tried to register their marriages such civil unions regime was not available.

In both Oliari and Orlandi, the ECtHR found that the ECHR compelled Italy to legalise same-sex couples. The question of whether other Contracting States were also required to give legal recognition was left open. Both judgments were ambiguous enough to be interpreted in one way or the other. This would be only clarified in Fedotova and Others v. Russia.

IV. Fedotova’s turning point
The case presents a background similar to Oliari’s: a group of same-sex couples brought a complaint before the ECtHR because they could not marry in Russia. They also invoked a violation of Article 8 in conjunction with Article 14, as well as Article 12 along with Article 14 of the ECHR. The ECtHR would only proceed to examine the violation of Article 8. In this regard, the ECtHR found, similarly to Oliari, that Russia violated Article 8 for not giving legal recognition to same-sex couples. However, in Fedotova the ECtHR went a step further than in Oliari. For the first time, the ECtHR acknowledged that Contracting States ‘have a positive obligation to provide legal recognition and protection to same-sex couples’ (para. 166). This means that any state bound by the ECHR is required to give legal recognition to same-sex couples. For the ECtHR, the fact that there is ‘an ongoing trend towards legal recognition and protection of same-sex couples in the States Parties’ (para. 175) was a decisive with a view to the acknowledgement of such positive obligation.

There have been two main criticisms of Fedotova. The first is that the ECtHR did not examine whether there was a situation of discrimination (Article 14). Partially dissenting judges Pavli and Motoc in Fedotova considered that the existence of discrimination was the main issue of the case. Furthermore, examining the case from a discrimination perspective would prevent the ECtHR from relying on the existence of a growing consensus among Contracting States to give recognition to same-sex couples. Instead, the ECtHR would have simply to analyse if the difference in treatment of same-sex couples against opposite-sex couples was justified (in this sense see Giulio Fedele’s post, and Claire Poppelwell-Scevak’s post).

A second criticism is that the ECtHR does not concretise which specific rights the same-sex couples who are granted legal recognition would enjoy. While Fedotova reduced the Contracting States’ margin of appreciation to decide whether or not to give same-sex couples legal recognition, it left a wide margin of appreciation concerning the extension of such legal recognition. This risks creating situations of recognition just in name, very distant from alternative materially equivalent to marriage. As the partially dissenting judges remarked, ‘future legal battles on the rights of same-sex couples will play out in the space between the “significantly reduced” and the “more extensive” benchmarks of the States’ margin of appreciation’.

If anything, Fedotova should be acknowledged for paving the way for the ECtHR to decide similar situations concerning other Contracting States that do not have any legal status for same-sex couples. Following Fedotova, in a period of less than a year, the ECtHR adopted equivalent decisions for Ukraine (Maymulakhin and Markiv v. Ukraine), Bulgaria (Koilova and Babulkova v. Bulgaria), Romania (Buhuceanu and Others v. Romania), and Poland (Przybyszewska and Others v. Poland). These four decisions relied significantly on what the ECtHR stood for in Fedotova. In the cases concerning Bulgaria, Romania, and Poland, the ECtHR found that the fact that their legal systems do not provide any legal recognition to same-sex couples amounted to a violation of Article 8, but without taking into consideration Article 14. In this regard, the Ukrainian judgment differs. In this case, the ECtHR did examine whether same-sex couples were discriminated vis-à-vis opposite-sex couples. While the first do not enjoy any legal status, the second could marry. The ECtHR found the difference in treatment between same-sex and opposite-sex couples to be unjustified, concluding that they should be provided legal recognition. While the outcome was identical to the other 2023 judgments, the reasoning was different. The ECtHR focused on examining whether there is a valid reason for same-sex couples to be treated differently from opposite-sex couples, and thus determining whether there was a situation of discrimination contrary to the ECHR. As the partially dissenting judges remarked in Fedotova, this seems a more adequate path to analyse an issue that has, at its core, a situation of discrimination based on sexual orientation.

C. The impact of the ECtHR judgments at the national level

According to Article 46(1) of the ECHR, ‘the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties’. In other words, a Contracting State is required to adopt ‘individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court’ (Ilgar Mammadov v. Azerbaijan, para. 150). This would mean that the Contracting States that have contravened the ECHR for not providing legal recognition for same-sex couples are required to given them a legal status. For instance, soon after Vallianatos, the Greek legislature expanded the civil unions regime to same-sex couples (Law 4356/2015). A similar move was made by the Italian legislator upon Oliari. Less than one year later, same-sex couples in Italy could enter into civil partnerships (Law No 76 of 20 May 2016). Some of the Contracting States recently affected by ECtHR judgments are also pushing forward similar legislation. In Ukraine, a civil partnership regime open to same-sex couples has been introduced by the government, though it is not clear when it will be passed by the legislature. Such an initiative was already pending when the ECtHR rendered its judgment in Maymulakhin and Markiv. Something similar occurred in Poland where, when the judgment was given, the recently elected centrist government was already planning to legalise same-sex unions.

Whether the ECtHR judgments might have helped to push forward such legislation, ultimately giving legal status to same-sex couples, depends on the national governments’ willingness to support such changes. Had the prior Polish ultra-conservative government prevailed in the September 2023 general elections, the ECtHR judgment is likely to have been ignored in this country. Poland would have limited itself to paying the indemnity granted by the ECtHR to the parties. In Romania, the ECtHR judgment also risks falling on deaf ears, with its Prime Minister stating that giving legal recognition to same-sex couples is not among the government’s priorities. A similar situation can be identified in Bulgaria, where the Koilova and Babulkova judgment is not expected to be followed by any measure to grant same-sex couples a legal status. It is highly improbable – not to say impossible – that Fedotova will have any effect in Russia, particularly considering that Russia has been expelled from the Council of Europe, and the ECtHR suspended the examination of subsequent applications against Russia.

The primary reason behind the inaction of some Contracting States to legalise same-sex couples lies in a rather general problem of the ECtHR: its lack of an effective mechanism to require states to implement its judgments. This contrasts with the Court of Justice of the European Union (CJEU). In case its judgments are not duly implemented by state authorities, this can amount to an infringement of EU law that can result in substantial fines imposed by the Commission. For instance, in the case C-673/16, Coman, the CJEU determined that Romania was required to acknowledge the right to reside in Romania of the non-EU citizen spouse in a marriage contracted in another Member State. This case triggered the Romanian government (though more than five years after the judgment) to propose a legislative initiative to recognise same-sex marriages contracted in other EU Member States solely for purposes of residency. Fearing a fine from the Commission might have been one of the reasons that led the Romanian government to propose such a measure.

While the ECtHR might lack the necessary tools to make its judgments effective, it seems to retain its appeal among same-sex couples to fight for legal recognition at the national level. Lithuania might soon join the list of states condemned by ECtHR for not legally recognising same-sex couples. Since 2022, there has been a civil union bill pending approval by the Lithuanian parliament. This has not prevented affected same-sex couples from turning to the ECtHR against Lithuania. Perhaps this might be an incentive towards the approval of the civil unions bill by the Lithuanian legislature.

D. Next step: marriage?

In 1978, the ECtHR referred to the ECHR as a ‘living instrument’ that ‘must be interpreted in the light of present-day condition’ (Tyrer v. the United Kingdom, para. 32). The ECtHR’s views on same-sex couples are a good reflection on how the ECHR is interpreted as a ‘living instrument’. It is not by accident that the ECtHR used this expression in Fedotova (para. 167).

In less than 50 years, same-sex couples moved from the margins of societies to a situation where they enjoy, in many European countries, a legal treatment equal to opposite-sex couples. While the ECtHR has followed these societal changes, it has also taken into consideration the divergent positions and views existing among its Contracting States. This is the reason why a judgment such as Fedotova might have little echo in countries such as Spain or the Netherlands, where marriage has been open to same-sex couples for more than two decades. Nonetheless, in Georgia or Azerbaijan, Fedotova might clash with the society’s majority position towards homosexuality. For instance, a poll conducted between 2017 and 2022 by the World Values Survey showed that around 91% of the respondents in Georgia considered homosexuality ‘not justifiable’.

It can be concluded that, regarding the recognition of same-sex couples, ECtHR is placed ‘between Scylla and Charybdis’: for some countries, its judgments might fall too short and for others they may seem too far-fetched. Nonetheless, the ECtHR’s evolving approach towards same-sex couples leaves the door open for further progress. Perhaps in the not-too-distant future, the ECtHR might take a step forward from merely acknowledging the right of same-sex couples to have legal status and finally rule that the ECHR protects the right of same-sex couples to marry. However, for that to happen, more Contracting States need to first move in that direction.