Judgment 75135/14

Applicant type Natural persons
Number of applicants 2
Country Ukraine
Application no. 75135/14
Date  01/06/2023 
Judges Georges Ravarani, President,
 Carlo Ranzoni,
 Mārtiņš Mits,
 María Elósegui,
 Mattias Guyomar,
 Kateřina Šimáčková,
 Mykola Gnatovskyy
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Article 8+14
Type of privacyRelational privacy
Keywords Gay relationship; legal recognition; discrimination; positive obligation
Facts of the caseTwo Ukrainian nationals have been living as a couple since 2010. In October 2014 they gave notice of marriage to seven different departments of the Register Office in Kyiv and the Kyiv region. The authorities rejected all those notices on the grounds that the Constitution and the Family Code explicitly defined marriage as a family union between a woman and a man. One of the men joined the army to fight in the war against Russia. Having replied in the negative to his superiors’ question whether he had a wife, he was informed that in the event of his death it was his mother who would be notified. The applicants complained under Article 8+14 as well as Article 1 of Protocol 12.
AnalysisThe ECtHR reiterates general principles, as summarised and formulated in Fedotova, such as that:
–          persons in a de facto relationship can rely both on the concepts of ‘private life’ and of ‘family life’;
–          that the term discrimination is the same for Article 14 ECHR and Article 1 Protocol 12, and that consequently, the ECtHR would evaluate this case under Article 8+14;
–          that for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous or relevantly similar situations;
–          that same-sex couples are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship;
–          that once the applicant has demonstrated a difference in treatment, the burden of proof is on the government to show that the difference was justified;
–          that a democratic society must reject any stigmatisation based on sexual orientation, being built on the equal dignity of individuals and sustained by diversity;
–          that the protection of the family in the traditional sense is a weighty and legitimate reason which might justify a difference in treatment on grounds of sexual orientation;
–          that, however, the concept of family is evolutive and that there is 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.
–          that the scope of the margin of appreciation attributed to the government will vary according to the circumstances, the subject matter and its background and the existence or non-existence of a European consensus;
–          that countries enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples;
–          that while the Court has to date not interpreted Article 8 ECHR as imposing a positive obligation to make marriage available to same-sex couples, it has confirmed that in accordance with their positive obligations to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship;
–          that private contractual agreements cannot be considered to give recognition and the requisite protection, given that they are of limited scope and fail to provide for some basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed relationship, such as, inter alia, the mutual rights and obligations they have towards each other, including moral and material support.
As to this case, the Court notes that applicants were in a stable relationship. Under Ukrainian law, unlike different-sex couples who prefer not to get married for personal reasons and yet remain eligible for at least some legal recognition and protection owing to their living as a de facto family, the applicants neither had access to marriage in Ukraine, nor could they obtain any alternative form of legal recognition; in addition, there was no possibility for the applicants to rely on the existence of their relationship in dealings with the judicial or administrative authorities. In analysing the State’s margin of appreciation, the Court takes note of a clear ongoing trend at European level towards legal recognition and protection of same-sex couples within the CoE’s member states, thirty of which currently provide for the possibility of legal recognition of same-sex couples. Because there was discriminatory treatment and because there was no objective justification for that treatment, the ECtHR finds a violation of Article 8+14 ECHR.
Other Article violation? No violation Article 1 Protocol 12
Damage awardedthat the respondent State is to pay, plus any taxes that may be chargeable to the applicants:
(i) EUR 32 (thirty-two euros) to each of the applicants in respect of pecuniary damage;
(ii) EUR 5,000 (five thousand euros) to each of the applicants in respect of non-pecuniary damage;
(iii) EUR 4,000 (four thousand euros) to the applicants jointly, in respect of costs and expenses;
Documents Judgment