The issue of the legal recognition of “same-sex couples” before the Grand Chamber of the European Court

Cases Vallianatos and others v. Greece, nos. 29381/09 and 32684/09

Strasbourg, 14 January 2013

On the 16th of January 2013, the Grand Chamber of the European Court of Human Rights will hold a public hearing on Vallianatos and others versus Greece case (applications nos. 29381/09 and 32684/09) which concerns the legislation on the “pact of common life” that entered into force in Greece in November 2008.  The applicants complain that same-sex couples can not enter into this civil partnership that has been created only for offering a legal framework to unmarried couples, as an alternative to marriage.

On the 6th and 25 May 2009, dissatisfied with the limitation of this civil partnership to the different-sex couples, six men, “living in couple” for two of them, “living for a long time in couple” for two others, and “having a relation without living together” for the two last as the Court précised, as well as « Synthesis », an “NGO aiming to support psychologically and morally homosexual persons” addressed a complaint to the European Court of Human Rights contesting the law no. 3719/2008. Invoking Article 8 (right to respect for private and family life), alone and in conjunction with Article 14 of the Convention (prohibition of discrimination), they allege that the “pact of common life, opened only to full-grown different-sex persons, as provided by the law no. 3719/2008, constitutes a violation of their right to respect for private life and of the principle of non-discrimination”. The applicants did not indicate in which manner and by which facts their rights were infringed.   

The first two applicants in the present case are two of the applicants in Dimitras and others v. Greece cases (nos. 2 and 3) contesting the oath taking before the Greek courts and the presence of crucifix in courts. They are represented before the Court by the Greek Helsinki Monitor a liberal NGO very active in the promotion of abortion and LGBT rights, as well as in the suppression of the Christian Orthodox religion from the Greek society.

In Greece, as well as in many other European countries, there are an increasing number of “unmarried families” (unmarried couples with children)[1]. The Government found this situation not satisfactory for the protection of family, especially for its members who are the most fragile, namely the children and mothers. It is the reason why Greece elaborated a “pact of common life” which confers to couples an alternative legal framework to marriage. On the 15th of November 2008, this “pact of common life” was adopted by the law no. 3719/2008 on “Reform on the law on family, children, society and other provisions”. Its provisions provide rights and obligations similar to those deriving from marriage for the partners[2] and for the children born during the pact of common life[3], conferring them a better safety; it also provides access to adoption.

It is to be noted that the applicants do not constitute families, neither under the Greek law, nor under the European and international norms and they have no vocation to form a family in the future, as the Greek law does not permit them to adopt children or to have access to medically assisted procreation techniques. Moreover, none of them has children or represent any children born from a former relation.

For the ECLJ, it is clear that there is no discrimination in the instant case, as same-sex couples and different-sex couples are not in the same situation as regards the ability to found a family with children. Legitimately, under the Convention and international norms, Greece can reserve the possibility to adopt children and to confer other rights related to the reality of family only to couples formed by a man and a woman. Admitting the opposite, namely that the Convention requires the status of “pact of common life” and that it should be opened to same-sex couples without children, would imply a new interpretation of Articles 8 (right to respect for private and family life), 12 (right to marry and to found a family) and 14 (prohibition of discrimination) of the Convention.

More deeply, in this case, the applicants hope to substitute a general principle of non-distinction (which does not permit to treat differently different situations) to the principle of non-discrimination (which permits to treat differently identical or similar situations, if there is “an objective and reasonable justification”). Such change, from non-discrimination to non-distinction would lead to the denial of the difference between same-sex and heterosexual couples. If the Court finds a violation in respect of Greece, the effect of this judgment will be, inter alia, the extension of the right to adoption of children by same-sex couples.

In 2012, the First Section decided to relinquish jurisdiction to the Grand Chamber. This is not without significance, three years after Schalk and Kopf v. Austria judgmentandconsidering the role of the Grand Chamber to establish new principles and to operate changes in its case-law, when it considers that the time is right. In Schalk and Kopf v. Austria case, the First Section of the Court found that there is no violation of the Convention due to the absence of legislation on “civil unions” between same-sex couples in Austria. The Section arrived at this conclusion considering that despite “an emerging European consensus towards legal recognition of same-sex couples (…), there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes”[4]. Will the Grand Chamber of the Court maintain this position or will it overturn this judgment? The change was prepared in Schalk and Kopf case, in which the Court decided, inter alia, that same-sex couples enjoy “family life”[5].

ECLJ drafted a Memorandum on Vallianatos and others v. Greece case, reasoning that it entails issues of admissibility and merits.

The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007. The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others. The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European 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).

[1] According to a research of the National Center of Social Research, the number of women in Greece at the age of 18-24 that chose to cohabit without getting married has tripled in the past thirty years;

[2] Articles 6, 7, 8, 10 and 11 of the law;

[3] Articles 8, 9, 10 and 11 of the law;

[4] Schalk and Kopf v. Austria, n° 30141/04, judgment of 24 June 2010, § 105;

[5] Schalk and Kopf v. Austria, n° 30141/04, judgment of 24 June 2010, § 99;