EIT:lta periaatteellisesti merkittävä tuomio samaa sukupuolta olevien henkilöiden oikeuksista

EIT on eilen antamassaan tuomiossa katsonut, että EIS 12 artikla (oikeus avioliittoon) sinänsä soveltui samaa sukupuolta olevien henkilöiden käsillä ollen, mutta että kyseisessä artiklassa ei kuitenkaan taata oikeutta avioliittoon samaa sukupuolta olevien henkilöiden kesken.

Toinen tärkeä ratkaisu tuomiosssa oli se, että EIT katsoi 8 artiklassa turvattavan samaa sukupuolta olevien henkilöiden oikuedet paitsi yksityiselämän, myös perhe-elämän suojaan. Tuomioistuin poikkesi näin aikaisemmasta oikeuskäytännöstään, jossa oli katsottu, että 8 artikla ei turvaa samaa sukupuolta olevien henkilöiden oikeutta perhe-elämän suojaan.

Tuomiossa ei kuitenkaan - äänin 4-3 - katsottu, että valittajien oikeuksia 8+14 artiklan osaltakaan olisi rikottu.

Article 12

The Court first examined whether the right to marry granted to “men and women” under the Convention could be applied to the applicants’ situation. As regards their argument that in today’s society the procreation of children was no longer a decisive element in a civil marriage, the Court considered that in another case it had held that the inability to conceive a child could not be regarded in itself as removing the right to marry.2 However, this finding and the Court’s case-law according to which the Convention had to be interpreted in present-day conditions did not allow the conclusion, drawn by the applicants, that Article 12 should be read as obliging member States to provide for access to marriage for same-sex couples.

The Court observed that among Council of Europe member States there was no consensus regarding same-sex marriage. Having regard to the Charter of Fundamental Rights of the European Union, to which the Austrian Government had referred in their pleadings, the Court noted that the relevant Article, granting the right to marry, did not include a reference to men and women, which allowed the conclusion that the right to marry must not in all circumstances be limited to marriage between two persons of the opposite sex. At the same time the Charter left the decision whether or not to allow same-sex marriage to regulation by member States’ national law. The Court underlined that national authorities were best placed to assess and respond to the needs of society in this field, given that marriage had deep-rooted social and cultural connotations differing largely from one society to another.

In conclusion, the Court found that Article 12 did not impose an obligation on the Austrian Government to grant a same-sex couple like the applicants access to marriage. It therefore unanimously held that there had been no violation of that Article.

Article 14 in conjunction with Article 8

The Court first addressed the issue whether the relationship of a same-sex couple like the applicants’ fell not only within the notion of “private life” but also constituted “family life” within the meaning of Article 8. Over the last decade, a rapid evolution of social attitudes towards same-sex couples had taken place in many member States and a considerable number of States had afforded them legal recognition. The Court therefore concluded that the relationship of the applicants, a cohabiting same-sex couple living in a stable partnership, fell within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

The Court had repeatedly held that different treatment based on sexual orientation required particularly serious reasons by way of justification. It had to be assumed that same-sex couples were just as capable as different-sex couples of entering into stable committed relationships; they were consequently in a relevantly similar situation as regards their need for legal recognition of their relationship. However, given that the Convention was to be read as a whole, having regard to the conclusion reached that Article 12 did not impose an obligation on States to grant same-sex couples access to marriage, the Court was unable to share the applicants’ view that such an obligation could be derived from Article 14 taken in conjunction with Article 8.

Given that with the entry into force of the Registered Partnership Act in Austria it was open to the applicants to have their relationship formally recognised, it was not the Court’s task to establish 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 this situation still persisted. It remained to be examined whether Austria should have provided the applicants with an alternative means of legal recognition of their partnership any earlier than it did. The Court observed that while there was an emerging European consensus towards legal recognition of same-sex couples, there was not yet a majority of States providing for it. The Austrian law reflected this evolution; though not in the vanguard, the Austrian legislator could not be reproached for not having introduced the Registered Partnership Act any earlier.

The Court was not convinced by the argument that if a State chose to provide same-sex couples with an alternative means of recognition, it was obliged to confer a status on them which corresponded to marriage in every respect. The fact that the Registered Partnership Act retained some substantial differences compared to marriage in respect of parental rights corresponded largely to the trend in other member States. Moreover, in the present case the Court did not have to examine every one of these differences in detail. As the applicants did not claim that they were directly affected by the remaining restrictions concerning parental rights, it would have gone beyond the scope of the case to establish whether these differences were justified.

In the light of these findings, the Court concluded, by four votes to three, that there had been no violation of Article 14 in conjunction with Article 8.

Koko tuomio: Schalk and Kopf v. Austria

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