November 07, 2023
by Ignatius Yordan Nugraha
In today’s globalised world, a marriage contracted abroad is not a peculiar phenomenon. Same-sex couples from countries such as Bulgaria or Romania may decide to tie the knot in a country where same-sex marriage has been legalised to start a family life. These couples, however, face a major legal hurdle not experienced by heterosexual couples, since their marriage would not be recognised in their home country. What will happen to their family life then? This is exactly what the case of Koilova and Babulkova v. Bulgaria is about.
On 5 September 2023, the Third Section of the European Court of Human Rights (ECtHR) ruled on whether the absence of any possibility for the legal recognition of same-sex couples in Bulgaria violated the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). Koilova and Babulkova might not be a shattering landmark addition to the Court’s jurisprudence, as it merely confirms the existing positive obligation to legally recognise and protect same-sex couples. Scholars who want the Court to engage more with equality issues might even be disappointed, since the Court decided not to consider Article 14 on the accessory right to non-discrimination, in contrast with the Fifth Section’s approach in Maymulakhin and Markiv v Ukraine just a few months before.
Nonetheless, Koilova and Babulkova further demonstrates that states that have not afforded any kind of legal recognition or protection for same-sex couples may be subject to a lawsuit in Strasbourg, and they can expect to be condemned for violating Article 8. In this short commentary, I will reflect on the implications of this case and on the issue of compliance.
The case concerns a same-sex couple from Bulgaria who has been living together since 2009 and exchanged their marriage vows in the United Kingdom on 15 November 2016. Subsequently, on 15 May 2017, the first applicant filed a request to the municipality of Lulin in the Bulgarian capital, Sofia, to change her civil status to ‘married’. Around a month later, her request was rejected because the Bulgarian Family Code defines marriage as the union between a man and a woman.
Her appeal to the domestic courts was also in vain, with the Supreme Administrative Court eventually confirming on 12 December 2019 that modification of civil status must be consistent with the definition of marriage prevailing under Bulgarian law. As a note, Article 46(1) of the Bulgarian Constitution also defines marriage as a union between a man and a woman.
In reference to its existing case law (particularly Schalk and Kopf v Austria), the Strasbourg Court emphasised that there is no obligation to legalise same-sex marriage under the ECHR. Nonetheless, it recalled the Grand Chamber judgment in Fedotova and Others v Russia that there is a positive obligation under Article 8 ECHR (the right to private and family life) to legally recognise and protect same-sex couples, given the existence of a European consensus on that matter.
The Court noted that the official recognition of same-sex couples has an ‘intrinsic value’ and would confer legitimacy to such couples in the eyes of society as a whole. Moreover, the ECtHR observed that same-sex couples, just as heterosexual couples, are in need of a legal protection that would satisfy their ‘basic needs’. In the Court’s view, official recognition cannot be dissociated from legal protection; lack of recognition means administrative and judicial disadvantage for same-sex couples.
Turning to the situation of the applicants, the ECtHR observed that Bulgarian law does not provide for a procedure that would allow for the legal recognition or registration of same-sex marriages contracted abroad (as a comparison, Israel has not legalised same-sex marriage, but it legally recognises same-sex marriages performed abroad, including online marriages in Utah). Bulgarian law also does not provide for any other form of partnership for same-sex couples (as another comparison, same-sex marriages contracted abroad are recognised as a civil union in Italy).
Without an official recognition, Bulgarian law treats the relationship between the applicants as a mere de facto union, even though they are legally married abroad. As a consequence, there is no legal protection that would satisfy the ‘basic needs’ of the applicants as a couple. The applicants could not regulate fundamental issues relating to their lives together, such as property and inheritance. They could only enter into contracts as private individuals.
Given the need of same-sex couples for legal recognition and protection, is there a public interest that may justify the absence of a recognition procedure for same-sex couples in Bulgaria? The Bulgarian government tried to argue that Bulgarian society is increasingly accepting of the legal recognition of same-sex couples, and that the issue of legal protection is now subject to public debate. However, according to the Court, such an observation does not reveal the existence of a public interest contrary to the interests of the applicants to obtain legal recognition and protection.
Furthermore, according to the ECtHR, the Bulgarian government did not give any precise indication of the public interest it sought to protect by refusing recognition to same-sex couples. Unlike the Russian government in Fedotova, the Bulgarian government did not try to invoke traditional values or hostile public opinion against same-sex marriage.
The Bulgarian government instead contested the existence of a positive obligation under Article 8 ECHR to legally recognise same-sex couples and invited the Court to allow social and legislative evolution to run its course. According to the Bulgarian government, ‘we observe in Bulgaria a process of natural acceptation of these questions, leading to a common agreement on a real fundamental change of society, and (…) any intervention by an international court in this process would be premature’ (para 57).
In this respect, the Strasbourg Court reiterated its case law in Fedotova — namely that the State’s margin of appreciation with regard to the legal recognition and protection of same-sex couples is narrowed. While Bulgaria’s margin of appreciation is wider with regard to the choice of means to ensure the effective protection of same-sex couples, the case itself concerns an important aspect of the identity of the applicants, which would narrow the margin.
Furthermore, the ECtHR recalled its recent observation in Fedotova on the existence of a European consensus. The Court found that there are 30 (out of 46) States Parties to the Convention that provide legal recognition for same-sex couples; 18 States that have legalised same-sex marriage (an observation that will soon need to be updated to 20 States as same-sex marriage became legal in Andorra in 2023 and will become legal in Estonia in 2024); and 12 other States that allow a form of recognition other than marriage. Thus, the Court reiterated that there is ‘a clear ongoing trend within the States Parties in favour of legal recognition of the union of persons of the same-sex (through the institution of marriage or a form of partnership), with a majority of thirty States Parties having legislated to that effect’ (para 61). Under the jurisprudence of the Court, the existence of a European consensus narrows the margin of appreciation accorded to a state.
At the time of the case, however, the Bulgarian government had not undertaken any measures to ensure the legal recognition of same-sex couples, including for those who lawfully wed abroad. This was further exacerbated by the fact that Bulgaria had failed to invoke a clear public interest to justify an interference with the right to family life of the applicants. Thus, Bulgaria was deemed to have overstepped its margin of appreciation and to have failed to fulfil its positive obligation to legally recognise and protect same-sex couples. As a result, the Strasbourg Court ruled that Bulgaria had violated Article 8 ECHR.
While the Court had made observations about how same-sex couples need legal protection just as heterosexual couples, it decided to limit its examination to Article 8 ECHR. In a summary fashion, the ECtHR ruled that there was no need to consider a separate examination under Article 14 on the accessory right to non-discrimination in conjunction with Articles 8 and 12 (the right to marry).
In response to the majority’s refusal to consider Article 14, the Albanian judge to the ECtHR Darian Pavli wrote a partly dissenting opinion. He pointed to the fact that the Fifth Section of the Court had ruled differently only a few months before. In Maymulakhin and Markiv v Ukraine, which was decided on 1 June 2023, the ECtHR found a violation of Article 14 in conjunction with Article 8 due to the lack of any possibility for same-sex couples to obtain a legal recognition and protection in Ukraine.
The ECtHR seems to be ‘on fire’ after the Grand Chamber judgment in Fedotova on 17 January 2023. Koilova and Babulkova is the fourth case concerning the legal recognition and protection of same-sex couples in the year 2023. In all of the four cases, Russia, Romania, Ukraine and Bulgaria are found to be in violation of the right to private and family life.
In this context, Koilova and Babulkova serves to consolidate the ECtHR’s jurisprudence on the existence of a positive obligation to legally recognise and protect same-sex couples. The Court first established this positive obligation for Italy in Oliari and Others (decided 21 July 2015). While ECHR scholars seem to be divided on whether the Court established a general positive obligation in Oliari or Fedotova, the string of four cases in 2023 confirms that Member States of the Council of Europe can now expect to face a lawsuit if they fail to provide any form of recognition and protection for same-sex couples.
Thus, gay and lesbian couples in Turkey, Azerbaijan, Serbia, Georgia or Armenia can now bring a case to Strasbourg — provided they have exhausted domestic remedies, of course — to petition these states to legally recognise and protect same-sex couples. More importantly, they can expect to win; the ECtHR was very firm in Fedotova that ‘the allegedly negative, or even hostile, attitude on the part of the heterosexual majority (…) cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law’ (para 219).
However, the challenge for the ECtHR remains in the realm of compliance and judgment execution. Russia was already expelled from the Council of Europe in light of its military aggression against Ukraine, but it is no secret that Russian compliance with the Fedotova judgment was rather unlikely. At the time this text is written, Romania and Ukraine are yet to formally recognise and protect same-sex couples, although for the latter, judgment execution might be complicated by the ongoing war with Russia. In fact, the Coman judgment of the Court of Justice of the European Union in 2018 — which obliged Romania to grant residence permit to the same-sex spouse of a European Union citizen — remains unenforced.
There is a clear correlation between the refusal to provide legal recognition for same-sex couples and hostile public opinion. As a result, while the Court ‘has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’ (Bayev v Russia, para 68), a shift in public opinion is indispensable in bringing a lasting change in the field of LGBT rights. After all, public opinion in Western Europe used to be very hostile to homosexuality before a massive paradigm shift occurred.
In this context, one may argue for an extensive reading of the right to non-discrimination: that states are obliged to actively work towards acceptance of LGBT individuals. At the same time, a more institutional approach might be necessary. the Inter-American Court of Human Rights’ institutional approach to the obligation to legalise same-sex marriage is elucidating in this respect (Advisory Opinion OC-24/17, para 226):
With the existing case law being unequivocal on the existence of a legal obligation to legally recognise and protect same-sex couples, it is now time for all the relevant stakeholders to turn to the issue of compliance, which may necessitate a more pragmatic and institutional strategy.
Koilova and Babulkova confirms that under the ECHR, there is a general positive obligation to legally recognise and protect same-sex couples. This positive obligation is inferred under Article 8 ECHR, while the decision of the Third Section of the Court to not consider Article 14 contradicts the judgment of the Fifth Section in Maymulakhin and Markiv. Given that the Grand Chamber also did not find it necessary to consider Article 14 in Fedotova, the finding of a violation of Article 14 in Maymulakhin and Markiv seems to be the exception rather than the norm.
At the same time, Koilova and Babulkova confirms that the ghost of Schalk and Kopf still lingers: the ECtHR was clear that there is no obligation under the right to marry, nor under the right to non-discrimination read in conjunction with the right to private and family life or the right to marry, to open the institution of marriage to same-sex couples. There is still a ‘rainbow iron curtain’ standing on the Oder river, and this iron curtain may remain for a while until a massive shift in public opinion occurs; the Court suddenly reversing Schalk and Kopf and establishing an obligation to legalise same-sex marriage is no guarantee of compliance in countries standing beyond this iron curtain.