Judgement 40209/20

Applicant type Natural person
Number of applicants 2
Country Bulgaria
Application no. 40209/20
Date 05/09/2023 
Judges Pere Pastor Vilanova, président,
 Jolien Schukking,
 Yonko Grozev,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Oddný Mjöll Arnardóttir, juges,
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation (legal recognition)
Type of privacy Relational privacy
Keywords Same sex marriage; not officially recognised
Facts of the case The two applicants are a same sex couple who got married in the United Kingdom; Bulgarian authorities refuse to put their status to married in the civil registry. The submit a complaint to the ECtHR relying on Article 8, 12 and 14 ECHR.
AnalysisThe ECtHR dismisses two preliminary defenses by the government, namely that the application was lodged out of time, which the Court holds is not true, and that they did not exhaust all domestic remedies, which the Court rejects both because of a continuing interference with the applicants’ rights and because the domestic remedies were not effective.
As to Article 8 ECHR, the Court basically reiterates its findings from its Fedotova judgement and points out that the absence of a legal system of recognition and protection open to same-sex couples affects both the personal and social identity of the people concerned, thus affecting their privacy life, and that a same-sex couple engaged in stable relationships enjoys a “family life” deserving recognition and protection. Legal recognition is important as such, even apart from practical consequences. There is no positive obligation on Member States to open marriage to same sex couples, but that there is a positive obligation on states to legally recognize same sex couples. To that end, the ECtHR notes that the authorities did not recognize the relationship between the applicants and that they did not intend to change the domestic legal system.  The applicants in this case had a stable relationship. Because there is a clear European consensus on recognizing same sex relationship, the Bulgarian government overstepped the limited margin of appreciation in this case.
That is why the ECtHR finds a violation of Article 8 ECHR and concludes that it is not necessary to issue a judgement on Articles 12 and 14 ECHR. Judge Pavli refers to his dissenting opinion in the Fedotova case, where he held the Court should also assess the matter of a potential violation of Article 8+14 ECHR. In addition, he points to a more recent case against Ukraine, where the Court indeed looked at those provisions in a similar case.
Other Article violation? No violation 12 or 14 ECHR
Damage awardedSaid, unanimously,
a) that the respondent State must pay to the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros ) for costs and expenses, plus any amount which may be payable on this sum by the applicants as tax, to be converted into the currency of the respondent State at the rate applicable on the date of settlement;
b) that from the expiry of the said period and until payment, this amount will be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during this period, increased by three percentage points;
Documents Judgment