February 25, 2016
This guest post was written by Zsolt Bobis, Program Coordinator with the Open Society Justice Initiative’s Equality and Inclusion Cluster @ZsoltBobis
The European Court of Human Rights (ECHR) has ruled in Pajić v. Croatia that Croatia’s former legal regime that had categorically denied same-sex couples the possibility of obtaining family reunification had violated human rights standards. The court sided with the applicant, a national of Bosnia and Herzegovina, who alleged she had faced discrimination on the basis of her sexual orientation during her application for a residence permit in Croatia.
In 2011, Ms. Danka Pajić, the applicant, lodged a request for a residence permit so she could live together with her Croatian partner in the city of Sisak. At the time, domestic law in Croatia rendered her same-sex relationship invisible for the purposes of family reunification. The Aliens Act did not allow family reunification for same-sex couples, same-sex unions did not fall within the scope of the Family Act and the Same-Sex Union Act did not define same-sex unions as a family. On the basis of the above, the Sisak Police Department rejected Ms. Pajić’s application for a residence permit and the Ministry of the Interior dismissed her appeal of the police decision.
Her ensuing discrimination claims fell on similarly deaf ears first at the Zagreb Administrative Court and then at the Constitutional Court. By the time Ms. Pajić turned to the Strasbourg court in 2013, she had for nearly two years been barred from obtaining a residence permit.
Before the ECHR, Ms. Pajić asserted that her stable de facto same-sex relationship, which she maintained by constant visits to Croatia, should be considered as family life under Article 8 of the Convention (the right to respect for private and family life). She also argued that the blanket exclusion of same-sex couples from the possibility of family reunification, which was open to unmarried different-sex couples, constituted direct discrimination in violation of Article 14 (the prohibition of discrimination in the enjoyment of Convention rights).
The court agreed.
Undermining the Croatian government’s assertions on the wide margin of appreciation a state enjoys regarding the concepts of family and private life and immigration policy, the ECHR reiterated its established case-law that the notion of “family life” under Article 8 extends beyond marriage-based relationships—and it includes stable de facto same-sex partnerships irrespective of whether the couple cohabitate or not. Cognizant it was Croatia’s impugned immigration policy that kept Ms. Pajić and her partner apart in spite of their expressed intentions to live together, the court found that her case fell within the notions of both “private life” and “family life.”
Moreover, in the court’s observations, Ms. Pajić, a partner in a same-sex relationship who applied for a residence permit for family reunification in order to pursue her intended family life in Croatia, was in a comparable situation to a partner in a different-sex unmarried relationship who did the same—except that Ms. Pajić was legally excluded from the possibility of applying for a permit. This exclusion introduced a difference in treatment into the law on the basis of sexual orientation.
Under the court’s well-established case-law, differences based on sexual orientation require “particularly convincing and weighty reasons” to be justified under the Convention and the state’s margin of appreciation is narrow in these cases. Differences based solely on considerations of sexual orientation are outright unacceptable.
In light of this jurisprudence and the absence of proper justification for the difference in treatment between same-sex and different-sex couples, which materialized in the form of a blanket exclusion of the former group of people from the possibility of obtaining family reunification in Croatia, the ECHR found a violation of the prohibition of discrimination in the enjoyment of the right to respect for private and family life.
The decision will not necessarily have significant practical implications for Croatia, where the Same-Sex Partnership Act of 2014 finally made it possible for same-sex couples to obtain family reunification nearly a year after Ms. Pajić launched her application in Strasbourg. (The government introduced the act after Croatians amended their constitution to explicitly state that “marriage is matrimony between a man and a woman” in a 2013 referendum.) However, it should serve as a warning to other Council of Europe states where same-sex couples are still discriminated against in immigration law in comparison to similarly situated different-sex couples.
Part of a series of recent ECHR rulings on sexual minorities’ rights, Pajić v. Croatia is analogous to the Vallianatos and Others v. Greece decision from 2013, in which the ECHR found Greece violated the same two Convention rights when the state categorically excluded same-sex couples from its civil union regime. In last year’s Oliari and Others v. Italy judgment, the court ruled that Italy violated same-sex couples’ right to respect for private and family life by not providing them any form of legal partnership recognition. Pressure from these decisions led Greece to legalize same-sex civil unions in 2015 and prompted lawmakers to introduce a same-sex partnership bill in Italy this year.