Strasbourg court orders Romania to institutionalize same-sex cohabitation
In 2019 and 2020. 21 same-sex couples complained to the European Court of Human Rights about the impossibility of formalizing their cohabitation in Romania, indicating that such a state of affairs constitutes discrimination on the basis of sexual orientation (Article 14 of the Convention) and violates their right to respect for private and family life (Article 8 of the Convention).
Indeed, Romanian law stipulates that marriage can only be entered into by a man and a woman (Article 271 of the Civil Code), and so-called same-sex marriages are prohibited (Article 277 §1 of the Civil Code). The complainants requested 525,000 euros in compensation (25,000 euros for each of the 21 complainants) for “psychological suffering” caused by the inability to formalize cohabitation.
Already in 2020, the Ordo Iuris Institute joined the proceedings before the ECHR as a friend of the court. In its submitted legal opinion, the Institute recalled that even in light of the Court’s own jurisprudence, the state has the right to protect the identity of marriage as a union between a man and a woman, and can refrain from institutionalizing same-sex cohabitation if the majority of society wishes it. This was also the case in Romania, where, according to a 2018 Pew Research Center survey, 74% of Romanians opposed the introduction of same-sex “marriages.”
In 2023, the Strasbourg Court ruled that Romania had violated the applicants’ right to respect for private and family life. In its reasoning, the Court referred to previous case law that states have an obligation to allow same-sex couples to formalize cohabitation – regardless of the opinion of the majority of society: “the negative attitude of the heterosexual majority cannot be set against the applicants’ interest in having their relationships recognized and regulated.” The Court, however, dismissed the complaints in part on the demand for compensation.
The verdict was reached by a majority of 5 votes to 2. Two judges – Prof. Krzysztof Wojtyczek of Poland and Dr. Armen Harutyunyan of Armenia – filed dissenting opinions, indicating that in their view Romania did not violate Article 8 of the Convention, because the provision allows for various forms of legal recognition of same-sex cohabitation, so it does not have to be registration (as the Court says), but can also be certain facilities in various areas of law that same-sex couples can enjoy without having to register their cohabitation as a marriage or “partnership.”
– This is the third Council of Europe member state to be ordered by the Strasbourg Court to institutionalize same-sex unions. For several decades, the Court has held that a same-sex relationship does not constitute a family within the meaning of the Convention. In 2010. The Court reversed its position, citing “changing times” in which most states had introduced same-sex partnerships or even marriage. In 2015. The Court ordered Italy to introduce civil unions for same-sex couples, in early 2023. Russia, and now – Romania. It is only a matter of time before analogous rulings are issued against other European countries, including Poland.
Although the Ordo Iuris Institute has consistently entered proceedings before the ECHR in these cases, arguing that the state can deviate from the institutionalization of same-sex unions by invoking public morality and the opinion of the majority of society, i.e. democratic considerations, the Court has gradually hardened its position, ruling out any deviation from the rule it has established. This is yet another manifestation, in fact, of the Court’s law-making activity, within the framework of which a redefinition of the concept of family is being carried out, which was intended by the creators of the Convention to be a community based on marriage understood as a stable union between a man and a woman,” stressed Weronika Przebierała, director of the International Law Center of the Ordo Iuris Institute.