Top Human Rights Court: States Must Respect Same-Sex Partnerships From Abroad

The European Court of Human Rights (ECtHR) delivered the judgment in a case that involved a refusal of registration of same-sex civil unions from abroad in Italy.

The ECtHR found that the laws that prevent domestic recognition of such unions violated the right to respect for private life. In its judgment, the Court referred to the amicus curiae opinion submitted in the case by Liberties member the Helsinki Foundation for Human Rights (HFHR).

Orlandi and Others v. Italy

The application was brought in this case by 11 Italian citizens and a Canadian national, all married in countries that legally acknowledge same-sex marriages. After they returned to Italy, they applied for the registration of these marriages to Italian authorities, who refused their requests claiming that a registration would contravene public order. The applicants emphasised that such decisions constituted discrimination based on sexual orientation.

In the case, Orlandi and Others v. Italy, the court emphasised that member states were free to choose whether to accept same-sex marriages or not; however, the states are obliged to guarantee same-sex couples legal recognition and protection. As the court noted, the majority of members of the Council of Europe (27 out of 47 states) recognise same-sex relationships in the form of civil unions, which is an institution comparable to marriage and is generally seen as sufficient in respecting the European Convention on Human Rights.

However, until a new law on same-sex unions entered into force in 2016, Italian law had not provided same-sex couples with any legal protection. The ECtHR held that this situation was not justified by any rational arguments, which led to a violation of Article 8 of the Convention (right to protection of privacy and family life).

Discrimination of same-sex couples in Poland

In an amicus curiae opinion submitted to the Strasbourg court, the HFHR referred to Polish regulations and noted that in Poland, there is no procedure for official registration of civil unions or even a mechanism of recognition of same-sex marriages concluded abroad. In Polish law, a marriage between persons of the opposite sex is the only valid form of a marital union.

The opinion emphasised that there is no justification for maintaining such a status quo in Poland, a country that fails to ensure even the most basic standard of legal recognition of same-sex couples.

The aforementioned loopholes in law result in the discrimination of sexual minorities at many levels. The Helsinki Foundation has been dealing with many different types of discrimination on the grounds of sexual orientation: discrimination in access to social rights and tax preferences; impossibility of obtaining a permit for the purchase of a real property in Poland by a foreign homosexual partner of a Polish citizen; a refusal of entering two parents of the same sex in a child’s birth certificate; the problems with acquisition of Polish citizenship by children of same-sex couples.

Moreover, since 2003, every proposed law that sought to allow the official registration of civil unions in Poland, whether submitted by both civil society organisations or political parties, has been rejected or ignored by the Parliament. The opinion also noted the growing public support for the protection of same-sex relationships under Polish law.

The HFHR amicus brief, drafted by the team of the Strategic Litigation Programme, is available here.