ECLJ welcomes the ECHR decision not to refer the Schalk and Kopf v. Austria decision before the Grand Chamber.

(Strasbourg, France) — The European Centre for Law and Justice (ECLJ) welcomes the decision taken by a panel of 5 judges on 22 November 2010 to reject the request for referral to the Grand Chamber relating to the case of Schalk and Kopf v. Austria. Thus the Court’s Chamber judgment of 24 June 2010 has thereby become final (Article 44 of the European Convention on Human Rights). Under Rule 73 of the Rules of the Court this means the panel did not find any “serious issue of general importance, which in is view warrants consideration by the Grand Chamber.” This marks a departure from the Court’s practise of referring cases with narrow majorities to the Grand Chamber and signifies a more prudent, self-restrained approach for the Court.

The case was brought before the Chamber by two men, Horst Michael Schalk and Johann Franz Kopf, who attempted to contract a civil marriage in Austria in 2002 but were not permitted to do so. The ECHR held that Article 12 of the European Convention, which guarantees “men and women” the right to marry, does not impose an obligation on Member States to provide same-sex couples the right to marry and the Court further affirmed that the Austrian government had not discriminated against the couple by not allowing two men to contract a marriage.

In its Chamber judgment of 24 June 2010, the Court noted that “marriage has deep-rooted social and cultural connotations which may differ largely from one society to another” and found that there is no European consensus on this issue, with only six of the forty-seven member states allowing same sex marriage. Thus the Court asserted that contracting states were ‘best placed to assess and respond to the need s of society’. Furthermore, the Court recognised that family life extends to same sex couples but there is no obligation on the states to extend marriage under Article 8.

This ruling rejecting the applicants request for referral before the Grand Chamber, despite the narrow 4 to 3 majority of the Chamber signifies a more cautious and prudent approach by the Court when referring cases for appeal. Dr Grégor Puppink, Director of the ECLJ states that “the Court needs to exercise “self-restraint” in ideological matters, such as bioethics. Therefore, the Court should respect the doctrine of Margin of Appreciation, recognising that states hold discretion to legislate according to their own social needs and values.”

The November 22nd decision may be viewed as having a profound political dimension. The Court was aware of the potential implications it would face from the contracting states had Schalk and Kopf v. Austria been referred. A referral would have caused a new strong political battle before the Grand Chamber, coming after the Lautsi and new S.H and others v Austria case.

This accounts for the panel’s more cautious approach and self-restraint in refusing to refer an issue deemed to be both political and judicial.

The European Centre for Law and Justice (ECLJ) is a Non-Governmental Organisation focusing on the protection of human rights and on the promotion of “the spiritual and moral values which are the common heritage of European’s peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy;” (Preamble of the Statute of the Council of Europe). Attorneys for the ECLJ have served as counsel in numerous cases before the European Court of Human Rights. Additionally, the ECLJ has special Consultative Status with ECOSOC of the United Nations, and is accredited to the European Parliament.