The lack of legal recognition of same-sex couples violates the ECHR. Providing legal recognition and protection to same-sex couples does not harm traditional families
JUDGMENT
Maymulakhin and Markiv v. Ukraine 01.06.2023 (app. no. 75135/14)
SUMMARY
The applicants are a same-sex couple living in Ukraine. They requested a marriage license but the authorities refused on the grounds that their country’s legislation does not allow any type of union for same-sex couples.
The ECtHR reiterated its longstanding position that same-sex couples are in a similar situation to any opposite-sex couple in terms of their need for legal recognition and protection of their relationship. Securing rights to same-sex couples does not in itself imply weakening the rights granted to other individuals or couples. Therefore, the protection of the traditional family could not in itself be accepted as a valid public interest reason justifying the denial of any legal recognition and protection to same-sex couples.
It pointed out that already thirty of the contracting states currently provide for the possibility of legal recognition of same-sex couples and concluded that the unjustified denial to the applicants as a same-sex couple of any form of legal recognition and protection compared to couples of different sexes, amounted to discrimination against them on grounds of sexual orientation .
The ECtHR found a violation of Article 14 and awarded each of them the sum of 5,000 euros for moral damage.
PROVISIONS
Article 14
Article 8
PRINCIPAL FACTS
The applicants are two men who have been living together in a stable and committed relationship since 2010. In 2014 they gave notice of marriage to seven different departments of the Register Office, all of which were rejected on the grounds that the Constitution and the Family Code of Ukraine explicitly defined marriage as a family union between a woman and a man.
THE DECISION OF THE COURT…
Article 14 taken in conjunction with Article 8:
(a) Applicability – The facts of the case fell within the scope of the applicants’ “private life” and “family life”. Consequently, Article 14 taken in conjunction with Article 8 was applicable.
(b) Merits –
(i) Whether there was a difference in the treatment of persons in analogous or relevantly similar situations – The applicants were in a relevantly similar situation to any different-sex couple as regards their need for legal recognition and protection of their relationship. That was a need experienced by two partners sharing their lives, which did not depend on the State’s approach to regulating the institution of marriage or putting in place any alternative means of legal recognition of couples, such as civil unions.
The domestic legal framework recognised two types of relationship for different-sex couples: marriage and a de facto family union, where a man and a woman “live as a family without being married”. While the level of legal protection given by those two legal statuses differed considerably, neither was imposed by the State nor stemmed from any objective reality but was purely a couple’s own choice. The applicants were however denied that choice. They neither had access to marriage, nor could they obtain any alternative form of legal recognition. It was thus artificial to compare their situation only with that of unmarried different-sex couples. The Government had admitted in substance that the applicants were denied any opportunity to regulate fundamental aspects of life as a couple except certain property-related aspects and then only as private individuals entering contracts under the ordinary law. The Court had already held that such private contractual agreements could not be considered to give recognition and the requisite protection to a couple. There was also no possibility for the applicants to rely on the existence of their relationship in dealings with the judicial or administrative authorities. It followed that the applicants, being a same-sex couple, had been and still were treated differently from different-sex couples on account of the absence of any legal recognition and protection that was available for the latter. The sole basis for that difference in treatment was their sexual orientation.
(ii) Whether the difference in treatment was justified – Ukraine was free to restrict access to marriage to different-sex couples only. However, the Government had not advanced any reasons justifying the outright exclusion of same-sex couples from legal regulation. While the Court welcomed the Government’s intention to put in place a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship, it could not speculate on legislation not yet in existence.
The protection of the family in the traditional sense was, in principle, a weighty and legitimate reason which might justify a difference in treatment on grounds of sexual orientation. However, that aim was rather abstract and a broad variety of concrete measures could be used to implement it. Moreover, the concept of family was necessarily evolutive, as was shown by the changes it had undergone since the Convention was adopted. The Court had already held there was no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity. Indeed, recognition of same-sex couples did not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples did not in itself entail weakening the rights secured to other people or other couples. Therefore, the protection of the traditional family could not in itself be accepted as a valid public-interest ground justifying the denial of any legal recognition and protection for same-sex couples.
The applicants sought to be treated with equal dignity in their core needs as a couple in a stable committed relationship, whereby the reality of their situation would not be entirely disregarded by the existing legal framework and whereby the State would confer a sense of legitimacy on their relationship by legally recognising its existence and by ensuring its adequate protection. Analysing the State’s margin of appreciation, the Court noted the clear ongoing trend towards legal recognition and protection of same-sex couples within the member States of the Council of Europe, thirty of which currently provided for the possibility of legal recognition of same-sex couples.
In view of the above, the State had failed to provide any justification for treating the applicants differently as a couple as compared with different-sex couples.
(iii) Conclusion – The difference in treatment, which consisted in the unjustifiable denial to the applicants as a same-sex couple of any form of legal recognition and protection as compared with different-sex couples, amounted to discrimination against the applicants on the grounds of their sexual orientation.
Conclusion: violation (unanimously).
Art 41: EUR 32 in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage awarded to each of the applicants.
