ECHR: Absence of legal recognition and protection of same-sex unions in Bulgaria violates rights convention

The European Court of Human Rights (ECHR) has found against Bulgaria, ruling that the country has violated Article 8 of the European Convention on Human Rights – respect for family life – for its failure to recognise same-sex unions.

The Chamber judgment was issued on September 5 in the case of Koilova and Babulkova vs Bulgaria, and is subject to appeal to the ECHR’s Grand Chamber.

A summary of the case by the ECHR said that Bulgaria’s national authorities had refused to indicate the first applicant’s marital status as married on her birth record, as established by her homosexual couple’s marriage certificate issued in the United Kingdom.

National law did not allow such a change as it did not provide for any form of union for same-sex couples.

The applicants consequently alleged that they were barred from enjoying the legal protection that they considered they were entitled to as a married couple.

Referring to Article 8 of the Convention, the court said that the unavailability of a legal regime for recognition and protection of same-sex couples affected both the personal and the social identity of those concerned. As to its “family life” aspect, a same-sex couple in a stable and committed relationship had a “family life” worthy of recognition and protection, the court said.

Having regard to the applicants’ allegations and in particular the current state of its case-law, according to which Articles 8, 12 and 14 of the Convention did not guarantee a homosexual couple’s right to marry, the Court decided to focus its examination on the question whether the respondent state – Bulgaria – had satisfied its positive obligation to secure legal recognition and protection for the applicants.

To that end, it had to examine whether, having regard to the margin of appreciation afforded to it, the respondent State had struck a fair balance between the prevailing interests it had relied on and the interests claimed by the applicants.

There was no procedure in Bulgaria that allowed for recognition or registration of a marriage contracted abroad by a same-sex couple or of a de facto family union.

According to the Bulgarian government, the Bulgarian legislative framework – which provided that marriage consisted in the union of a man and a woman in accordance with a definition having its basis in the constitution – did not provide for any other form of partnership for same-sex couples and the evolution of society was not such that the legislature could consider making the relevant changes at that stage.

“Unlike a very large number of States Parties, the respondent State had not conveyed to the Court any intention to amend its domestic law to that effect.”

In the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad.

“The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple.”

They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties.

Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

“Thus, the Court could not consider that the protection afforded to same-sex couples in a stable and committed relationship in Bulgaria had satisfied the fundamental needs of those concerned.”

The Bulgarian government had not submitted that recognition of same-sex couples was in conflict with the need to preserve the values tied to the traditional concept of the family, that national public opinion was broadly opposed to homosexual relationships, or that prohibiting the promotion of homosexual relationships was necessary for the protection of minors.

“On the contrary, they had simply contested that there was a positive obligation under Article 8 to legally recognise homosexual couples and had invited the Court to allow the social and legislative evolution they claimed to be witnessing in Bulgaria to take its course, which would, in their view, lead to such recognition in the future.”

The ECHR said that it had previously found, having regard to its case-law as consolidated by a clear ongoing trend within the member States of the Council of Europe, that in accordance with their positive obligations under Article 8 of the Convention, the member States were required to provide a legal framework allowing same sex couples to be granted adequate recognition and protection of their relationship.

“Secondly, the Government’s observations had given no precise indication as to which public interest the State had wished to defend by refusing to protect the applicants’ individual interests.”

At the same time, the Bulgarian government had categorically denied that the absence of a specific legal framework providing for the recognition and protection of same-sex couples was designed to protect the family as traditionally understood.

“They had merely argued – explaining that they were best placed to assess, when the time came, how the national community felt about the issue – that determining the appropriate moment for a specific legal framework to be developed to that end and the terms of such development fell within their margin of appreciation,” the ECHR said.

The ECHR had recently stated that that margin of appreciation was now significantly reduced when it came to affording same-sex couples the possibility of legal recognition and protection. It was, on the other hand, wider as to the “choice of the means” used to ensure the effective protection of such couples’ rights.

The court had recently noted in the Fedotova and Others case that the “European trend towards legal recognition of same-sex couples which it had already observed in previous cases was clearly confirmed today”.

“It was therefore permissible to speak of a clear ongoing trend within the States Parties towards legal recognition of same-sex couples (through marriage or other forms of partnership) since a majority of thirty States Parties had legislated to that effect. That trend was consolidated by the converging positions of a number of international bodies.”

In the Koilova and Babulkova vs Bulgaria case, while emphasising that the laws and judicial practice in no way authorised legal recognition of homosexual couples, the government had submitted that “the national authorities were resolutely committed to the fight against discriminatory treatment on grounds of sexual orientation and had insisted that the idea of regulating homosexual couples was gaining greater acceptance within society”.

“In spite of this fact, the national authorities had taken no steps to date to have appropriate regulations enacted for the recognition of same-sex unions. As to the circumstances of the present case, the evidence examined did not enable the Court to establish the existence of a public interest that might prevail over the applicants’ essential interests as set out above.”

The court found that Bulgaria had “overstepped its margin of appreciation and failed to satisfy its positive obligation to ensure that the applicants had available to them a specific legal framework providing for the recognition and protection of their union as a same-sex couple”.

Accordingly, the applicants’ right to respect for their private and family life had not been secured in that respect, the court said, finding unanimously that Article 8 had been violated.

(Photo: CherryX)

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