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You are here: BAILII >> Databases >> European Court of Human Rights >> SCHALK AND KOPF v. AUSTRIA - 30141/04 [2010] ECHR 995 (24 June 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/995.html Cite as: (2011) 53 EHRR 20, 53 EHRR 20, [2010] ECHR 995

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FIRST SECTION

CASE OF SCHALK AND KOPF v. AUSTRIA

(Application no. 30141/04)

JUDGMENT

STRASBOURG

24 June 2010

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Schalk and Kopf v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 25 February 2010 and on 3 June 2010,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

There appeared before the Court:

(a)  for the Government
Mrs B. Ohms, Federal Chancellory, Deputy Agent,
Mrs G. PASCHINGER, Federal Ministry of European and International Affairs
Mr M. Stormann, Federal Ministry of Justice, Advisers;

(b)  for the applicants
Mr K. Mayer, Counsel,
Mr H. Schalk, Applicant;

(c)  for the Non-governmental organisations, third-party interveners
Mr R. Wintemute, Kings College, London Counsel,
Mrs A. Jernow, International Commission of Jurists, Adviser.

The Court heard addresses by Mrs Ohms, Mr Mayer and Mr Wintemute.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

“The administrative proceedings that resulted in the impugned decision were exclusively concerned with the issue of the legitimacy of the marriage. Accordingly, the complainants’ sole applicable grievance is that Article 44 of the Civil Code only recognises and provides for marriage between “persons of opposite sex”. The allegation of a breach of the right of property is simply a further means of seeking to show that this state of affairs is unjustified.

With regard to marriage, Article 12 of the ECHR, which ranks as constitutional law, provides:

‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

Neither the principle of equality set forth in the Austrian Federal Constitution nor the European Convention on Human Rights (as evidenced by “men and women” in Article 12) require that the concept of marriage as being geared to the fundamental possibility of parenthood should be extended to relationships of a different kind. The essence of marriage is, moreover, not affected in any way by the fact that divorce (or separation) is possible and that it is a matter for the spouses whether in fact they are able or wish to have children. The European Court of Human Rights found in its Cossey judgment of 27 September 1990 (no. 10843/84, concerning the particular position of transsexual persons) that the restriction of marriage to this “traditional” concept was objectively justified, observing

‘... that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage.’

[The subsequent change in the case-law concerning the particular issue of transsexuals (ECHR, Goodwin, no. 28957/95, 11 July 2002) does not permit the conclusion that there should be any change in the assessment of the general question at issue here.]

The fact that same-sex relationships fall within the concept of private life and as such enjoy the protection of Article 8 of the ECHR – which also prohibits discrimination on non-objective grounds (Article 14 of the ECHR) – does not give rise to an obligation to change the law of marriage.

It is unnecessary in the instant case to examine whether, and in which areas, the law unjustifiably discriminates against same-sex relationships by providing for special rules for married couples. Nor is it the task of this court to advise the legislature on constitutional issues or even matters of legal policy.

Instead, the complaint must be dismissed as ill-founded.”

II.  RELEVANT DOMESTIC AND COMPARATIVE LAW

A.  Austrian law

1.  The Civil Code

“The marriage contract shall form the basis for family relationships. Under the marriage contract two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other.”

The provision has been unchanged since its entry into force on 1 January 1812.

2.  The Registered Partnership Act

“A registered partnership may be formed only by two persons of the same sex (registered partners). They thereby commit themselves to a lasting relationship with mutual rights and obligations.“

B.  Comparative law

1.  European Union law

“The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”

“Modern trends and developments in the domestic laws in a number of countries toward greater openness and acceptance of same-sex couples notwithstanding, a few states still have public policies and/or regulations that explicitly forbid the notion that same-sex couples have the right to marry. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. The domestic laws of the majority of states presuppose, in other words, that the intending spouses are of different sexes. Nevertheless, in a few countries, e.g., in the Netherlands and in Belgium, marriage between people of the same sex is legally recognized. Others, like the Nordic countries, have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e. its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. At the same time it is important to point out that the name ‘registered partnership’ has intentionally been chosen not to confuse it with marriage and it has been established as an alternative method of recognizing personal relationships. This new institution is, consequently, as a rule only accessible to couples who cannot marry, and the same-sex partnership does not have the same status and the same benefits as marriage. (...)

In order to take into account the diversity of domestic regulations on marriage, Article 9 of the Charter refers to domestic legislation. As it appears from its formulation, the provision is broader in its scope than the corresponding articles in other international instruments. Since there is no explicit reference to ‘men and women’ as the case is in other human rights instruments, it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages. International courts and committees have so far hesitated to extend the application of the right to marry to same-sex couples. (...)”

European Council Directive 2003/86/EC of 22 September 2003, on the right to family reunification, deals with the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States.

Its Article 4, which carries the heading “family members”, provides:

“(3)  The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive und subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third country national who is bound to the sponsor by a registered partnership in accordance with Article 5(2), ...”

Directive 2004/38/EC of the European Parliament and Council of 29 April 2004 concerns the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Its Article 2 contains the following definition:

“(2)  ’Family member’ means:

(a)  the spouse

(b)  the partner with whom the Union citizen has contracted a registered parternship, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage in accordance with the conditions laid down in the relevant legislation of the host Member State.

(c)  the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)

(d)  the dependent direct relative in the ascending line and those of the spouse or partner as defined in point (b).”

2.  The state of relevant legislation in Council of Europe member States

28.  In addition there are thirteen member States, which do not grant same-sex couples access to marriage, but have passed some kind of legislation permitting same-sex couples to register their relationships: Andorra, Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland and the United Kingdom. In sum, there are nineteen member States in which same sex couples either have the possibility to marry or to enter into a registered partnership (see also the overview in Burden v. the United Kingdom [GC], no. 13378/05, § 26, ECHR 2008).

THE LAW

I.  THE GOVERNMENT’S REQUEST TO STRIKE THE APPLICATION OUT OF THE COURT’S LIST

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(b)  the matter has been resolved;

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

II.  ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

The Government contested that argument.

A.  Admissibility

B.  Merits

1.  The parties’ submissions

2.  The third party interveners’ submissions

3.  The Court’s assessment

a.  General principles

b.  Application in the present case

III.  ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

Article 8 reads as follows:

“1.  Everyone has the right to respect for his private and family life, ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A.  Admissibility

1.  Exhaustion of domestic remedies

2.  The applicants’ victim status

3.  Conclusion

B.  Merits

1.  The parties’ submissions

2.  The third parties’ submissions

3.  The Court’s assessment

a.  Applicability of Article 14 taken in conjunction with Article 8

b.  Compliance with Article 14 taken together with Article 8

IV.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Admissibility

FOR THESE REASONS, THE COURT

Done in English, and notified in writing on 24 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Christos Rozakis
Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  Joint dissenting opinion of Judges Rozakis, Spielmann and Jebens;

(b)  Concurring opinion of Judge Malinverni joined by Judge Kovler.

C.L.R.
A.M.W

JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN AND JEBENS

“In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would.”

“same-sex couples are just as capable as different-sex couples of entering into stable committed relationships [and that] [c]onsequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.”

CONCURRING OPINION OF JUDGE MALINVERNI
JOINED BY JUDGE KOVLER

(Translation)

I voted together with my colleagues in favour of finding no violation of Article 12 of the Convention. However, I cannot subscribe to some of the arguments set out in the judgment in reaching that conclusion.

By Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties of 23 May 1969, which lays down the general rule on interpretation of international treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

In my view, “the ordinary meaning to be given to the terms of the treaty” in the case of Article 12 cannot be anything other than that of recognising that a man and a woman, that is, persons of opposite sex, have the right to marry. That is also the conclusion I reach on reading Article 12 “in the light of its object and purpose”. Indeed, Article 12 associates the right to marry with the right to found a family.

Article 31, paragraph 3, of the Vienna Convention provides that, as well as the context, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” must be taken into account (point (b)).

I do not consider that this provision of the Vienna Convention can be relied on in support of the conclusion set out in paragraph 55 of the judgment. The fact that a number of States, currently five, provide for the possibility for homosexual couples to marry cannot in my opinion be regarded as a “subsequent practice in the application of the treaty” within the meaning of the provision in question.

Literal interpretation, which, according to the Vienna Convention, represents the “general rule of interpretation”, thus precludes Article 12 from being construed as conferring the right to marry on persons of the same sex.

I come to the same conclusion if I interpret Article 12 by reference to other rules of interpretation, although such rules, as is rightly noted in the title of Article 32 of the Vienna Convention, are merely supplementary means of interpretation, and literal interpretation remains the general rule (Article 31).

In accordance with Article 32 of the Vienna Convention, recourse may be had to supplementary means of interpretation, particularly in order to “determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.

Bearing in mind that supplementary means of interpretation include, as stated in Article 32 of the Vienna Convention, “the preparatory work of the treaty and the circumstances of its conclusion”, I consider that the so-called historical interpretation to which Article 32 of the Vienna Convention refers can only serve to “confirm the meaning resulting from the application of Article 31” (Article 32).

There is therefore no doubt in my mind that Article 12 of the Convention cannot be construed in any other way than as being applicable solely to persons of different sexes.

Admittedly, the Convention is a living instrument which must be interpreted in a “contemporary” manner, in the light of present-day conditions (see E.B. v. France [GC], no. 43546/02, § 92, ECHR 2008-..., and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §§ 74-75, ECHR 2002-VI). It is also true that there have been major social changes in the institution of marriage since the adoption of the Convention (see Christine Goodwin, cited above, § 100). However, as the Court held in Johnston and Others v. Ireland (18 December 1986, § 53, Series A no. 112), while the Convention must be interpreted in the light of present-day conditions, the Court cannot, by means of an evolutive interpretation, “derive from [it] a right that was not included therein at the outset”.

On the contrary, I consider that Article 12 is inapplicable to persons of the same sex.

Admittedly, in guaranteeing the right to marry, Article 9 of the Charter of Fundamental Rights of the European Union deliberately omitted any reference to men and women, since it provides that “the right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”.

In my opinion, however, no inferences can be drawn from this as regards the interpretation of Article 12 of our Convention.

The commentary on the Charter does indeed confirm that the drafters of Article 9 intended it to be broader in scope than the corresponding articles in other international treaties. However, it should not be forgotten that Article 9 of the Charter guarantees the right to marry and to found a family “in accordance with the national laws governing the exercise of these rights”.

By referring in this way to the relevant domestic legislation, Article 9 of the Charter simply leaves it to States to decide whether they wish to afford homosexual couples the right to marry. However, as the commentary quite rightly points out, “there is no obstacle to recognize same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages.”

In my view, Article 9 of the Charter should therefore have no bearing on the interpretation of Article 12 of the Convention as conferring a right to marry only on persons of different sexes.

It is true that the Court has already referred to Article 9 of the Charter in the Christine Goodwin judgment (cited above, § 100). However, in that case the Court considered whether the fact that domestic law took into account, for the purposes of eligibility for marriage, the sex registered at birth, and not the sex acquired following gender reassignment surgery, was a limitation impairing the very essence of the right to marry. After her operation, the applicant lived as a woman and wished to marry a man. The case did not therefore concern marriage between persons of the same sex.