ECtHR: states must respect same-sex partnerships registered abroad
The European Court of Human Rights has delivered the judgment in a case that involved a refusal of registration of same-sex civil unions from abroad in Italy. The Court found that the laws which prevent domestic recognition of such unions violated the right to respect for private life. In the judgment, the ECtHR referred to the amicus curiae opinion submitted in the case by the Helsinki Foundation.
Orlandi and Others v. Italy
The application was brought in this case by 11 Italian citizens and a Canadian national, all married in countries that legally acknowledge same-sex marriages. After they returned to Italy, they applied for the registration of these marriages to Italian authorities who refused their requests claiming that a registration would contravene public order. The applicants emphasised that such decisions constituted discrimination based on sexual orientation.
The Court emphasised that member states were free to choose whether to accept same-sex marriages or not; however, the states are obliged to guarantee same-sex couples legal recognition and protection. As the Court noted, the majority of members of the Council of Europe (27 out of 47 states) recognise same-sex relationships in the form of civil unions, which is an institution comparable to marriage and is generally a measure sufficiently respecting ECHR standards. However, until a new law on same-sex unions entered into force in 2016, Italian law had not provided same-sex couples with any legal protection. The ECtHR held that this situation was not justified by any rational arguments, which led to a violation of Article 8 of the Convention (right to protection of privacy and family life).
Discrimination of same-sex couples in Poland – opinion of HFHR
In an amicus curiae opinion submitted to the Strasbourg Court, the HFHR has referred to Polish regulations and noted that in Poland there is no procedure for official registration of civil unions or even a mechanism of recognition of same-sex marriages concluded abroad. In Polish law, a marriage between persons of opposite sexes is the only valid form of a marital union. The opinion emphasised that there is no justification for maintaining such a status quo in Poland, a country that fails to ensure even the most basic standard of legal recognition of same-sex couples.
The aforementioned loopholes in law result in sexual minorities being discriminated against at many levels. The Helsinki Foundation has been dealing with many different types of discrimination on the grounds of sexual orientation: discrimination in access to social rights and tax preferences, impossibility of obtaining a permit for the purchase of a real property in Poland by a foreign homosexual partner of a Polish citizen, a refusal of entering two parents of the same sex in a child’s birth certificate, or the problems with acquisition of Polish citizenship by children of same-sex couples.
Moreover, since 2003, all proposals of laws that sought to enable the official registration of civil unions in Poland, submitted by social organisations and political parties, have been rejected or discontinued on the Parliament’s floor. The opinion also noted the growing public support for the introduction of same-sex relationships into Polish law.
The judgment given in the case Orlandi and Others v. Italy can be accessed here.
To view the HFHR amicus, drafted by the team of the Strategic Litigation Programme, follow this link.