This guest post was written by Natalija Bitiukova*
Is it possible that having a discriminatory law allowing civil partnerships only for different-sex couples is better than having no law at all? After the Grand Chamber released its judgment in Vallianatos and Others v. Greece case, Lithuanian human rights advocates have realized that indeed it is. Contrary to a popular view that the judgment could become an easy-win for Lithuanian same-sex couples, it seems that the equal right to enter into a civil partnership will have to wait. Unfortunately, the ECtHR, in naming Greece and Lithuania as the only countries which provide for a form of registered partnership designed solely for different-sex couples, has counted them wrongly.
On 7 November 2013 the Grand Chamber held that Greece has violated the rights of same-sex couples by reserving a registered partnership (“civil unions”) scheme exclusively for different-sex couples.
Four same-sex couples challenged the 2008 Law that for the first time in Greece provided for an official form of partnership other than marriage. Under the Law, only two adults of different sex could enter into such unions. The applicants, relying on Article 14 in conjunction with Article 8, argued that the Law infringed their right to respect for their private and family life and amounted to discrimination on the ground of sexual orientation. The Government advanced two sets of arguments in response. Firstly, same-sex couples could regulate all the rights and obligations conferred by the Law (property matters, financial relations, inheritance rights) on a contractual basis, thus the Law was not necessary for them. Secondly, the objective of the Law was to protect children born outside marriage and to strengthen the institution of the family “in the traditional sense” by making it easier for parents to raise their children without being obliged to marry (para. 80).
The Grand Chamber was not persuaded by either of these arguments. In relation to the first point, the Court stressed the importance of a formalized recognition for same-sex couples (emphasis added):
„…an officially recognised alternative to marriage have an intrinsic value for the applicants irrespective of the legal effectives, however narrow or extensive that they would produce.“ (para. 81)
„…same-sex couples would have a particular interest in entering into a civil union since it would afford them, unlike different-sex couples, the sole basis in Greek law on which to have their relationship legally recognised.“(para. 90)
Turning to the second argument, the Court agreed that in principle the protection of “the family in the traditional sense” and the protection of the interests of the child are both legitimate aims which might justify a difference in treatment (para. 83). However, contrary to the Government‘s view, these were not the main objectives of the Law. It “primarily aimed at affording legal recognition to a new form of non-marital partnership,” the Court held. Hence, nothing precluded the legislator from protecting the rights of the children born outside marriage, and conferring a possibility to enter into civil unions for same-sex couples by the same Law (paras. 87-88).
Finally, the Court acknowledged an emerging trend with regards to legal recognition of same-sex relationships:
„…with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope.“ (para. 91)
In the absence of any convincing reasons justifying the exclusion of same-sex couples from the Law, the Court found a violation of Article 14 taken in conjunction with Article 8 (para. 92).
Prospects of a Vallianatos-type Case in Lithuania
In its analysis of a slowly emerging consensus (although subject to critique – see here), the Court named Lithuanian as the second Council of Europe outlier “which provide for a form of registered partnership designed solely for different-sex couples, as an alternative to marriage (which is available only to different-sex couples)” (para. 91).
However, same-sex couples in Lithuania cannot immediately rely on the success of Vallianatos, neither it is likely that Lithuania will soon become the first post-Soviet state to provide all couples irrespective of their sexual orientation with some kind of legal recognition. A simple reason for that – Lithuanian legislation does not allow different-sex couples to register partnerships either. At least, not yet.
The confusion in the judgment was caused by an ambiguous provision in the Civil Code:
“Article 3.229. Scope. The provisions of this Chapter shall regulate the relations in property of a man and a woman who, after registering their partnership in the procedure laid down by the law, have been cohabiting at least for a year with the aim of creating family relations without having registered their union as a marriage (cohabitees)”
Although the Civil Code entered into force on 1 July 2001, the Law on Partnership was never adopted. The article as it stands, although seemingly discriminatory, cannot be invoked in the litigation as it does not provide for a right to have one’s partnership registered, but rather establishes subsidiary property-related rules for those who already exercised their right to conclude a civil partnership under the non-existent law. Moreover, according to the rules annexed to the Civil Code, Article 3.229 and the whole section were to enter into force once the Law on Partnership was adopted. Therefore, these provisions were never effectual.
In Vallianatos, as in its previous jurisprudence on the same matter (see e.g. Schalk and Kopf v. Austria), the Court abstained from discussing positive obligations on a state to provide for a form of legal recognition in domestic law for same-sex relationships. On the contrary, it was very clear on about the limited scope of the case:
“…the applicants’ complaint is not that the Greek State failed to comply with any positive obligation which might be imposed on it by the Convention, but that it introduced a distinction, by virtue of Law no. 3719/2008, which in their view discriminates against them.” (para. 75)
Thus, the absence of a discriminatory law means no real consequences for Lithuania. In November 2011, though, the Lithuanian Ministry of Justice presented a draft law recognizing the status of cohabiting unmarried different-sex partners. MP Pavilionienė (Social Democrat) in turn registered a draft partnership law for both same-sex and different-sex partners. The first law has never reached the Government, while the second has been pending before the Parliament’s committees for more than two years. Vallianatos-type legal action could follow, only when progress towards legal recognition of alternatives to marriage is made in Lithuania.
*Natalija Bitiukova holds an LL.M. in Human Rights from the Central European University. She is a Deputy Director at the Lithuania-based human rights organization Human Rights Monitoring Institute.