Judgement 20081/19

Applicant name Buhuceahu and others 
Applicant type Natural person
Number of applicants 42
Country Romania
Application no.20081/19, 20108/19, 20115/19, 20122/19, 20129/19, 20134/19, 20140/19, 55037/19, 55041/19, 55045/19, 55047/19, 55049/19, 55051/19, 5926/20, 5948/20, 5965/20, 5985/20, 6013/20, 6034/20, 6046/20 and 6058/20
Date 23/05/2023 
Judges Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Krzysztof Wojtyczek,
 Faris Vehabović,
 Branko Lubarda,
 Armen Harutyunyan,
 Ana Maria Guerra Martins,
Institution Court
Type Judgement
Outcome Art. 8 Violation
Reason Positive obligation (health and morals)
Type of privacy Relational privacy
Keywords Same-sex couple; positive obligation; margin of appreciation; in abstracto
Facts of the case A gay couple wants to marry, but are not allowed to by the local authorities. They also seek to be co-insured as a couple, but are not accepted as such by the health authorities. Several courts have subsequently rejected their claim; the constitutional court is still reviewing the matter as the ECtHR assess the case.
Analysis The Court touches upon a small number of points.
1. As to the question of admissibility and the exhaustion of domestic remedies, the Court points out that under the Romanian legal system, neither the courts nor the Constitutional Court can amend the law or create new rights that are not already provided by law. The case still pending at national level concerns only one specific aspect of the applicants’ list of grievances and are in no way capable of addressing the main issue in the case, that is the lack of legal recognition of same-sex couples. Because these proceedings are still pending and the date of their conclusion, and their outcome, are uncertain, the ECtHR finds that there is no evidence enabling it to hold that the remedies suggested by the Government would have had any prospects of success. Thus, the case is declared admissible.
2. The ECtHR refers to its Fedotova case, in which it found that there was a European consensus on accepting same-sex relationships. Following therefrom, the Court accepted a positive obligations for countries to have legal arrangements in place for same-sex couples to be recognised, though that not necessarily means marriage. In this case, the Court finds that in the absence of official recognition, same-sex couples are nothing more than de facto unions under Romanian law, the partners being unable to regulate fundamental aspects of their life as a couple such as those concerning property, maintenance and inheritance as an officially recognised couple. Nor are they able to rely on the existence of their relationship in dealings with the judicial or administrative authorities. This is an interference with their the applicants’ rights under Article 8 ECHR.
3. Turning to the question whether such an interference is justified, the Government argued that the majority of Romanians disapprove of same-sex union. The ECtHR dismisses this point because a negative attitude on the part of the heterosexual majority cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law. The Court reiterates that the margin of appreciation of countries is significantly reduced when it comes to affording same-sex couples the possibility of legal recognition and protection, though they have a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples. Romania is under a positive obligation to make such arrangements and failed to meet that obligation, which means a violation of Article 8 ECHR. Finally, the Court ads that ‘Having regard to its finding under Article 8, the Court considers that it is not necessary to examine separately whether, in this case, there has also been a violation of Article 14 in conjunction with Article 8. (§86)’
4. In a partly dissenting opinion, judge Guerra Martins points to the extremely succinct reasoning on Article 14 ECHR. She feels that discrimination law has evolved over the past decades and that it is an issue that is of the utmost importance, which is why this question should have dealt with in substance in this case. In their dissenting opinion, judges Wojtyczek and Harutyunyan stress that the case should not have been dealt admissible. Interestingly, they feel that the applicants had not met the de minimis threshold, as the applicants had not provided sufficient evidence that the legal shortcomings had affected them personally. In addition, they point that the extremely succinct description of facts in the ECtHR’s judgement, potentially combined with the high number of applicants, shows that this case concerns an in abstracto evaluation (evaluating a nation’s legal regime as such), which the ECtHR normally does not execute. Largely relying on the Fedotova case, which the majority does in this judgement, denies the differences in the two cases, such as that Romanian law does provide for some legal recognition of same-sex couple, (2) that there were discussions on changing the Romanian legal regime and (3) that the government had consented to making those changes. That is why they feel that Article 8 ECHR had not been violated in this case.
Other Article violation? No Article 8+14
Damage awarded Finding of a violation of the Convention constitutes in itself sufficient just satisfaction
Documents Judgment