More protection than recognition for same-sex couples in Buhuceanu and Others v Romania

by Giulio Fedele, University of Rome “La Sapienza”, giulio.fedele@uniroma1.it

With its latest decision in the case of Buhuceanu and Others v. Romania on 23 May 2023, the European Court of Human Rights returned to the subject of same-sex couples and legal recognition. To no-one’s surprise, the Court confirmed what it had already established just five months earlier (on 17 January) in the Grand Chamber’s decision of Fedotova v. Russia (and in Oliari and Others v. Italy in 2015, even though with much less clarity), where it held that all the State Parties to the European Convention are required, in accordance with their positive duties under Article 8 of the European Convention on Human Rights (ECHR), to introduce a legal framework that can ensure the recognition and protection of same-sex couples (see more here and here).

Even though the outcome was predictable for this reason, the Romanian case was nevertheless significant. It was the largest ‘same-sex unions’ case’ Strasbourg has ever seen, with 21 couples and 42 applicants overall claiming they could not marry nor have their relationship formally recognised. As such, the decision has already been described as a ‘landmark ruling’ for the protection of LGBT rights in Romania, for the State will now have to make the necessary adjustments to the national legislation to ensure the execution of the judgment. Moreover, the decision came in a climate of intense debate in Romania on same-sex couples, as not only the Strasbourg Court but also the Court of Justice of the European Union found in 2015 that Romania should ensure legal recognition for the purpose of application of European Union law.

Nevertheless, those acquainted with the Strasbourg Court case-law on same-sex couples and legal recognition will probably frown upon some of the findings (or rather the omissions) of Buhuceanu v. Romania. As I will try to show in this Post, in a case that basically replicates the facts and the arguments of Fedotova, the Court chose to ‘tailor’ the findings of Fedotova, relying on some elements while ignoring some of the others. In particular, it seems that the Court (perhaps inadvertently) chose to focus only on the practical perspective of legal recognition (i.e. the disadvantages that result from its absence) while ignoring the whole ‘intrinsic value’ narrative that was used in previous case-law to highlight that same-sex couples have an interest in being recognised per se, for it is a symbol of inclusion, visibility and equality. In doing so, the Court is running the risk of ‘watering down’ the conclusions and the relevance of the ground-breaking judgment that was Fedotova for the protection of same-sex couples under the Convention.

Facts and judgment

The facts and the judgment were similar to the other applications in previous case-law. Usually, this types of cases unroll similarly and are decided in a similar way.

One or more couples notified their intention to marry to the national local authorities. Their request was denied on the ground that it is contrary to national legislation. The couples decided to file an application to the European Court of Human Rights, claiming that the absence of legal recognition violates their rights under the Convention, in particular Article 8 ECHR (right to private and family life) and Article 8 taken in conjunction with Article 14 ECHR (principle of non-discrimination).

The Court proceeded to affirm the existence of a general positive obligation on behalf of the respondent State to afford legal recognition to same-sex couples (‘as consolidated by a clear ongoing trend within the member States of the Council of Europe’, para. 73) and subsequently it examined whether the respondent State had put forward a plausible and acceptable justification for not having discharged this obligation. Since that was not the case, the Court found a violation of the Convention (on the ground of Article 8; an examination of the complaint under Article 14 is usually deemed as not necessary).

So far, the Court has rejected every possible justification from the respondent States: the protection of the traditional family and the institution of marriage (Fedotova v. Russia, para. 212); the protection of minors (ibid., para. 222-223); and the negative attitude of the national population (ibid., para. 219). In Buhuceanu, Romania was destined to the same fate, unsurprisingly, as it decided to rely mainly on the ‘pressing social need’ to respect the ‘unfavourable perception’ of society towards same-sex couples (the Government considered it was fair to present data showing that the majority of people disagreed with the idea that ‘gay, lesbian and bisexual people should have the same rights as heterosexual people’, para. 50).

On the other hand, the Court highlighted that the States enjoy a certain margin of appreciation in deciding the exact nature of the legal regime to be made available to same-sex couples, which may widen or narrow depending on the socio-cultural context and on the degree of European consensus (para. 82 in Buhuceanu).

A purely practical perspective on legal recognition?

What is more interesting, rather than how the Court came to find a violation of Article 8 in Buhuceanu, is how the Court substantiated why same-sex couples are deserving of legal recognition.

The main and only reason the Court chose to highlight is a practical one: with official recognition, there comes rights. These rights are very practical, such as the right to hospital visitation; the right to inherit the partner’s lease; the right to have a joint insurance (see the complete list made available by the applicants in para. 38). In absence of official recognition, those rights are not granted, and the couple is not protected in their private and family life. For this reason, in paragraph 78, the Court affirmed that ‘the applicants have a particular interest in obtaining the possibility of entering into a form of civil union or registered partnership’, the particular interest being a practical one, namely ‘to have their relationships legally recognised and protected – in the form of core rights relevant to any couple in a stable and committed relationship’. While this practical perspective is perfectly understandable (in the end, it is essential for partners to have their say in the financial, economic and legal affairs that affect the relationship) one cannot but remain perplexed that this is the only perspective adopted by the Court in this case, especially if one looks back at the previous case-law on the matter.

Legal recognition it is not (just) about rights, it is not (just) about protection. It is also a matter of inclusion, equality, and dignity, all things that go beyond the practical or legalistic benefits. Legal recognition is about… recognition, indeed, as the Court had the chance to emphasise numerous times in its case-law.

For example, in Vallianatos v. Greece (GC, 2013) the Court felt compelled to underline that entering into a civil partnership has ‘an intrinsic value’ for same-sex couples ‘irrespective of the legal effects, however narrow or extensive, that they would produce’ (para. 81), for it was the only way they could ‘[have] their relationship officially recognised by the State’ (ibid., emphasis added).

The idea that recognition is as important as protection was further reinforced in Fedotova v. Russia, where the Court referred to Vallianatos and Oliari in holding that ‘gaining official recognition for their relationship has an intrinsic value for the applicants. Such recognition forms part of the development of both their personal and their social identity as guaranteed by Article 8 of the Convention. […] Accordingly, official recognition of same-sex couples confers an existence and a legitimacy on them vis-à-vis the outside world’ (paras. 200-201).

Furthermore, in Fedotova, the Court affirmed for the first time in clear terms that, in seeking recognition, same-sex couples have a right to lead a ‘private social life’ (para. 143), which is close to the idea that same-sex couples should be entitled to live their life and their relationships as they wish, deciding how to present themselves to society and whether to register their partnership. In this respect, the Court recalled its ruling in Dadaouch v. Malta to highlight that ‘a person’s civil status (be it married, single, divorced or widowed) formed part of his or her personal and social identity’ (ibid.)

From the previous case-law, it is thus clear that legal recognition is central since not only it is a source of rights and protection, but also it constitutes a means to express the couples’ identity and to acquire legitimacy and visibility in the eyes of the State and society.

Strikingly, all this narrative is absent from the decision in Buhuceanu. There is not a reference to the ‘intrinsic value’ of legal recognition. Article 8 is invoked very briefly, only as it refers to both ‘private life’ and ‘family life’, but there is no mention of the right to lead a ‘private social life’ (see paras. 27-28). The Court did not even assert, as it often did in cases such as this one, that same-sex couples are ‘in a relevantly similar situation to a different-sex couple as regards their need for recognition and protection of their relationship’ (see, for example, Schalk and Kopf v. Austria, para. 99; Vallianatos v. Greece, paras. 78 and 81; and Oliari v. Italy, para. 165). All the arguments that in previous case-law were grounded, in one form or another, on equality considerations, disappeared in this decision. These omissions are even more surprising giving the fact that four judges that were sitting in this case (Judges Eicke, Wojtyczek, Lubarda, Harutyunyan) were also sitting in the Grand Chamber in Fedotova (Judge Wojtyczek was dissenting) and that Fedotova is very recent. Moreover, the applicants relied on the ‘intrinsic value’, since they pled ‘that the lack of legal recognition and protection of their families deprived them of their dignity as spouses, stigmatised them and harmed them – validating and even inviting prejudice towards them’ (para. 36). It is therefore puzzling that the Court decided not to pick up on any of the arguments related to equality considerations and ‘tailored’ the findings of Fedotova to privilege exclusively the practical nature of legal recognition.

The unwillingness of the Court to engage more directly and extensively with the symbolic dimension of recognition and with considerations of equality is further reinforced by the fact that the Court dismissed a separate examination of the complaint under Article 14 ECHR (paras. 85-86). In doing so, the Court relied on Fedotova, where it considered that discrimination was not a ‘fundamental aspect’ of the case (see Dudgeon v. the United Kingdom, 1981, para. 67) and that the finding of a violation under Article 8 ECHR alone was sufficient. Nevertheless, as the partly dissenting Judges Pavli and Motoc highlighted in Fedotova (and similarly Judge Guerra Martins in this case), ‘the applicants’ sexual orientation [is] the sole basis for denying them any form of legal recognition or protection’ (para. 4 of the dissenting opinion). Therefore, not only it seems artificial to maintain that discrimination is a collateral aspect of the case (see here on this point in Fedotova), but this conclusion in the specific context of Buhuceanu reinforces the idea that the Court was unwilling to engage with considerations of equality. The fact that discrimination is at play in this case is even more clear if one looks at the justification put forward by Romania, namely the fact that the national population disagreed with the idea that heterosexuals and homosexuals should have the same rights (para. 50).

Conclusion: mixed feelings

In Buhuceanu v. Romania, the Court has approached the question of legal recognition from a purely practical-legalistic point of view, and ignored the importance and significance of recognition per se. In this regard, it should be noted that same-sex couples look for recognition not only for rights, but also for validation and inclusion: they want to be considered equal to different-sex couples and have the possibility to register their union through the same form of legal partnership. This is a symbolic value that comes with recognition and that should not be diminished or overlooked by the Court.

A study conducted by IZA (Institute of Labor Economics) in 2018, collecting data from 2002 to 2016 from 325.000 people in thirty-two European countries, showed that introducing legal recognition for same-sex couples increased their social acceptance. Beyond practicability, it is clear that recognition serves an important social purpose in this regard and has an ‘intrinsic value’ not only for same-sex couples but also for the system of the ECHR, as it fosters inclusion, equality, democracy and the effectiveness of the Convention. This is why the Court should promote, rather than overlook, the ‘intrinsic value’ of legal recognition.

Moreover, an exclusively practical perspective, as the one adopted by the Court in Buhuceanu, could lead to dangerous results. Accordingly, States could focus on ways to effectively ensure the protection of rights without providing an official form of recognition or registration. Or they could design a legal framework that ensure a certain amount of protection, ‘equal’ to different-sex couples, that nevertheless keeps same-sex couples ‘separate’. This is noted by dissenting judges Wojtyczek and Harutyunyan, who argue that the approach of the Court ‘does not equate legal recognition with registration’ and ‘States may choose among several possible means of granting legal recognition to same-sex couples’, as long as ‘rights and protection are granted ex lege, without the necessity to apply to the domestic courts for protection’ (para. 7 of the jointly dissenting opinion). In this way, the risk is to empty legal recognition of all its significance and symbolic value.

Moreover, this approach runs the risk of being reminiscent of the ‘separate but equal’ doctrine (or ‘private but equal’ as some suggested), that perpetuated racial segregation in the US keeping people of colour ‘separate’ from white people while still affording the former ‘equal’ substantive protection. It is a tendency that is showing occasional symptoms in some of the member States of the Convention, where same-sex couples are distinguished from different-sex couples while it is affirmed that the latter are deserving of their own kind of protection (see for example the Italian Constitutional Court’s decision no. 138/2010, where it was held that same-sex couples enjoy the protection of Article 2 of the Italian Constitution as ‘social formations’ and not of Article 29 as ‘family’). It is a tendency that is contrary to the values of the Convention, and which the Court should avoid encouraging.

For the reasons set above, one cannot but have mixed feelings about Buhuceanu v. Romania. The judgment stands at odds with the previous case-law, in which the Court was mindful not only of the practical dimension of legal recognition, but moreover of its symbolic value. It might be worth noting that the Court will have another chance to retrace its steps and correct its narrative about legal recognition, as other similar applications are currently pending against Poland (for example Przybyszewska and Others v. Poland). All in all, it seems fair to reaffirm once again that legal recognition should be about protection as much as it should be about… recognition.