During the course of the proceedings the Austrian Registered Partnerships Act came into force.The European Court held: (i) Whilst Article 12 of the European convention gives men and women a right to marry, the court no longer considered that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two people of different sex. Austria. In a number of cases the question arose whether refusal to allow a post-operative transsexual to marry a person of the opposite sex to his or her assigned gender violated Article 12. The applicants alleged in particular, that they were discriminated against as, being a same-sex couple, they were denied the possibility to marry or to have their relationship otherwise recognised by law.4. 30141/04) JUDGMENT STRASBOURG 24 June 2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. var part2 = "icj.org"; After her operation, the applicant lived as a woman and wished to marry a man. However, this corresponds on the whole to the trend in other member States (see paragraphs 32-33 above). CIJ - Commission Internationale de Juristes In Schalk & Kopf v. Austria, the European Court of Human Rights held that the denial of a marriage license to a same-sex couple did not run counter to Austria’s obligations under Article 12 of the European Convention, but the Court did hold for the first time that an unmarried same-sex couple without children constituted a family for the purposes of privacy under Article 8. Thus, the Constitutional Court was in a position to deal with the issue and, indeed, addressed it briefly, albeit only by stating that it was for the legislator to examine in which areas the law possibly discriminated against same-sex couples by restricting certain rights to married couples. The Registered Partnership Act, Federal Law Gazette (Bundesgesetzblatt) vol. P.O. Schalk and Kopf v. Austria. 30141/04)JUDGMENTSTRASBOURG24 June 2010FINAL22/11/2010This judgment has become final under Article 44 § 2 of the Convention. 43546/02, § 92, ECHR 2008-..., and Christine Goodwin, cited above, §§ 74-75). Statement of Facts – Schalk and Kopf v Austria ECHR 16-Feb-2010 The applicants, same sex partners, complained of the refusal of their request to be married, saying that the legal impossibility for them to get married constituted a violation of their right to respect for private and family life and of the . 30141/04, Council of Europe: European Court of Human Rights, 24 June 2010, available at: https://www.refworld.org/cases,ECHR,4c29fa712.html [accessed 28 December 2020] This is not a UNHCR publication. Moreover, Christine Goodwin is concerned with marriage of partners who are of different gender, if gender is defined not by purely biological criteria but by taking other factors including gender reassignment of one of the partners into account.60. Article 9 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and entered into force on 1 December 2009, reads as follows: "The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.". This situation still obtains following the entry into force of the Registered Partnership Act. The Government did not argue, however, that the complaint was inadmissible as being incompatible ratione materiae. The third party interveners' submissions45. (...)In order to take into account the diversity of domestic regulations on marriage, Article 9 of the Charter refers to domestic legislation. 35748/05, 28 November 2006). Furthermore, Article 12 grants the right to found a family.55. Secondly, they agreed with the applicants' argument drawn from Karner (cited above). In contrast, the Court's case-law has only accepted that the emotional and sexual relationship of a same-sex couple constitutes "private life" but has not found that it constitutes "family life", even where a long-term relationship of cohabiting partners was at stake. On the contrary, they stated that the issue of registered partnership could be regarded as being inherent in the present application.67. (iii) Where a Member State chooses to provide same-sex couples with an alternative to marriage such as a registered partnership, the Member State is not obliged to confer a status on same-sex couples which corresponds to marriage in each and every respect. 33290/96, ECHR 1999-IX), permission to adopt a child (Fretté v. France, no. The fact that different-sex couples were able to marry, while same-sex couples were not, constituted a difference in treatment based on sexual orientation. In this respect we note a contradiction in the Court's reasoning. We cannot agree with the majority that there has been no violation of Article 14 taken in conjunction with Article 8 of the Convention, for the following reasons.2. The Court solemnly affirmed this in paragraph 94 of the judgment: "In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy 'family life' for the purposes of Article 8. Schalk & Kopf raises the questions of whether European consensus with regard to equal treatment of same-sex couples has now grown enough to permit the On the whole, the Court does not see any indication that the respondent State exceeded its margin of appreciation in its choice of rights and obligations conferred by registered partnership.110. ", "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.". Only when those two conditions are satisfied does the subsidiary nature of the Convention preclude examination of an application (see, for instance, Scordino v. Italy (dec.), no. They argued that in the event that one partner in a homosexual couple died, the other was discriminated against since he would be in a much less favourable position under tax law than the surviving partner in a married couple.13. Turning to the second limb of the applicants' complaint, namely the lack of alternative legal recognition, the Court notes that at the time when the applicants lodged their application they did not have any possibility to have their relationship recognised under Austrian law. Merits1. The lack of any legal framework before the entry into force of the Registered Partnership Act ("the Act") raises a serious problem. Since there is no explicit reference to 'men and women' as the case is in other human rights instruments, it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. ', [The subsequent change in the case-law concerning the particular issue of transsexuals (ECHR, Goodwin, no. Like married couples, registered partners are expected to live together like spouses in every respect, to share a common home, to treat each other with respect and to provide mutual assistance (section 8(2) and (3)). The Court concluded that it fell within the State's margin of appreciation how to regulate the effects of the change of gender on pre-existing marriages. In Schalk and Kopf vAustria1 the First Section of the European Court of Human Rights (ECtHR or ‘the Court’) had the opportunity to reflect upon the impact of recent developments across Europe extending marriage rights to same-sex cou- In the present case, the Court does not have to examine whether the first condition has been fulfilled, as the second condition has not been met. F +41 (0)22 979 38 01 However, I cannot subscribe to some of the arguments set out in the judgment in reaching that conclusion.1. 135/2009, entered into force on 1 January 2010. The applicants complained under Article 14 taken in conjunction with Article 8 of the Convention that they were discriminated against on account of their sexual orientation, since they were denied the right to marry and did not have any other possibility to have their relationship recognised by law before the entry into force of the Registered Partnership Act.Article 8 reads as follows: "1. The Court reiterated its finding in Schalk and Kopf v. Austria delivered on 24 June 2010 that neither Article 12, nor Article 8 taken together with Article 14, could be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage. The court reasoned that the debate on marriage equality is still an active political question and should be left to each member state to apply its “own visions.” The Court is not convinced by that argument. Regarding compliance with the requirements of Article 14 taken in conjunction with Article 8, the Government maintained that it was within the legislator's margin of appreciation whether or not same-sex couples were given a possibility to have their relationship recognised by law in any other form than marriage. In the circumstances of the present case, the Court is not called upon to resolve the question whether or not the applicants exhausted domestic remedies. So far the Court's case-law had considered homosexual relationships to fall within the notion of "private life" but there might be good reasons to include the relationship of a same-sex couple living together in the scope of "family life".80. . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.FOR THESE REASONS, THE COURT1. We have voted against point 6 of the operative part. It is "subject to the national laws of the Contracting States", but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see B. and L. v. the United Kingdom, no. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 1111. They noted that the question had been left open in Karner (cited above, § 33). However, the Government did not explicitly pursue that argument in their oral pleadings before the Court. The question of same-sex marriage was first decided by the Court in the seminal case of Schalk and Kopf v Austria in 2010. Violation of Article 8 (right to protection of private and family life) Sporer v. Austria 03.02.2011 . In the words of the commentary: "... it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. The relevant parts of its judgment read as follows: "The administrative proceedings that resulted in the impugned decision were exclusively concerned with the issue of the legitimacy of the marriage. ECtHR, Schalk and Kopf v Austria (24 June 2010, appl no 30141/04) Context Schalk and Kopf are an Austrian same-sex couple. The domestic laws of the majority of states presuppose, in other words, that the intending spouses are of different sexes. var part1 = "info"; What remains to be examined in the circumstances of the present case is whether the respondent State should have provided the applicants with an alternative means of legal recognition of their partnership any earlier than it did.105. In the absence of consensus, the State enjoyed a particularly wide margin of appreciation.47. That is also the conclusion I reach on reading Article 12 "in the light of its object and purpose". However, as the Court held in Johnston and Others v. Ireland (18 December 1986, § 53, Series A no. When it comes to parental consequences, however, the possibilities for registered partners to undergo medically assisted insemination or to foster or adopt children vary greatly from one country to another.34. It notes that in their application to the Court the applicants did not give any details in respect of the alleged violation of Article 1 of Protocol No. The applicants were born in 1962 and 1960, respectively. Dissolution of a registered partnership occurs in the event of the death of one partner (section 13). In the case of Schalk and Kopf v. Austria,The European Court of Human Rights (First Section), sitting as a Chamber composed of:Christos Rozakis, President, Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni, George Nicolaou, judges, and André Wampach, Deputy Section Registrar,Having deliberated in private on 25 February 2010 and on 3 June 2010,Delivers the following judgment, which was adopted on the last-mentioned date:PROCEDURE1. In Schalk & Kopf v. Austria, the European Court of Human Rights held that the denial of a marriage license to a same-sex couple did not run counter to Austria’s obligations under Article 12 of the European Convention, but the Court did hold for the first time that an unmarried same-sex couple without children constituted a family for the purposes of … 15. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).5. Admissibility40. Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter of Fundamental Rights of the European Union (the Charter), the Court has already noted that the latter has deliberately dropped the reference to men and women (see Christine Goodwin, cited above, § 100). The Court found that article 12 does not necessarily exclude same-sex couples. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic, cited above, § 38).99. In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy "family life" for the purposes of Article 8. Currently six out of forty-seven member States grant same-sex couples equal access to marriage, namely Belgium, the Netherlands, Norway, Portugal, Spain and Sweden.28. In coming to that conclusion, the Court observed that despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, given the existence of little common ground between the Contracting States, this was an area in which they still enjoyed a wide margin of appreciation (see Mata Estevez v. Spain (dec.), no. However, in the light of the parties' comments the Court finds it appropriate to address the issue whether their relationship also constitutes "family life".91. The Austrian Registered Partnership Act, which entered into force on 1 January 2010, reflects the evolution described above and is thus part of the emerging European consensus. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. THE GOVERNMENT'S REQUEST TO STRIKE THE APPLICATION OUT OF THE COURT'S LIST35. In their contention, no such reasons existed: the exclusion of same-sex couples from entering into marriage did not serve to protect marriage or the family in the traditional sense. As the respondent Government as well as the third-party Government have rightly pointed out, the present case has to be distinguished from Christine Goodwin. Case summary. As the national law did not allow marriage between partners of the same sex, their request was dissmissed. In contrast there was no convergence of standards as regards same-sex marriage. The applicants were represented by Mr K. Mayer, a lawyer practising in Vienna. 26. Key facts of the case: The case originated in an application (no. 30141/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two Austrian nationals, Mr Horst Michael Schalk and Mr Johan Franz Kopf ("the applicants"), on 5 August 2004.2. These included, inter alia, different age of consent under criminal law for homosexual relations (L. and V. v. Austria, nos. However, this finding does not allow any conclusion regarding the issue of same-sex marriage.57. Austrian law1. The applicants, Horst Michael Schalk and Johann Franz Kopf, are Austrian nationals who were born in 1962 and 1960 respectively and live in Vienna. The choice of wording in Article 12 must thus be regarded as deliberate. 28957/95, ECHR 2002-VI), for instance, the Court had reviewed its position regarding the possibility of post-operative transsexuals to marry a person of the sex opposite to their acquired gender, having regard to the fact that a majority of Contracting States permitted such marriages. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Burden, cited above, § 60).97. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of 'family life', just as the relationship of a different-sex couple in the same situation would. Everyone has the right to respect for his private and family life, ...2. The rules on the choice of name differ from those for married couples: for instance, the law speaks of "last name" where a registered couple chooses a common name, but of "family name" in reference to a married couple's common name. A joint third-party comment was received from four non-governmental organisations which had been given leave by the President to intervene, namely FIDH (Fédération Internationale des ligues des Droits de l'Homme), ICJ (International Commission of Jurists) AIRE Centre (Advice on Individual Rights in Europe) and ILGA-Europe (European Region of the International Lesbian and Gay Association). They are a same-sex couple living in Vienna.8. However, they argued that in the absence of any objective and rational justification for the difference in treatment, considerably less weight should be attached to European consensus.48. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex.56. In conclusion the Court found that the impossibility for a post-operative transsexual to marry in her assigned gender violated Article 12 of the Convention.53. Nor would giving same-sex couples access to marriage devalue marriage in the traditional sense. Recently the Court pronounced judgment in the case of Schalk & Kopf v. Austria.10 In this case the Court gave an interpretation of the Articles on which this thesis will focus: the right to private and family life (Article In most of the States concerned registered partners obtain a status similar to marriage. In sum, there are nineteen member States in which same sex couples either have the possibility to marry or to enter into a registered partnership (see also the overview in Burden v. the United Kingdom [GC], no. Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides: "The marriage contract shall form the basis for family relationships. The case concerned the complaint by former foster parents about not being able to have contact with the child they had fostered. The applicants complained that, compared with married couples they suffered disadvantages in the financial sphere, in particular under tax law. The state of relevant legislation in Council of Europe member States27. In the Government's view this position was supported by the Court's decision in Courten v. the United Kingdom (no. In 2010, the ECtHR ruled on the case Schalk and Kopf v. Austria. union between partners of different sex (Schalk and Kopf v. Austria, 2010, § 55) 11. By now almost 40% had legislation allowing same-sex couples to register their relationships as marriages or under an alternative name (see paragraphs 27-28 above).3. Finally, the Court will examine the applicants' argument that they are still discriminated against as a same sex-couple on account of certain differences conferred by the status of marriage on the one hand and registered partnership on the other.108. No other ground for declaring it inadmissible has been established.B. However, by deciding that there has been no violation, the Court at the same time endorses the legal vacuum at stake, 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.5. 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