Mixed results in European marriage ruling

A case brought before the European Court of Human Rights has produced mixed results for the legal status of same-sex relationships across Europe.

Johann Kopf and Horst Shalk brought the case before the Court, arguing that Austria had breached the European Convention on Human Rights when they were refused a marriage permit in Vienna in 2002.

Article 8 of the Convention protects the right to family and private life, while Article 12 protects the right to marry and Article 14 prohibits discrimination.

The UK Government had intervened in the trial on the side of Austria, tarnishing the new British Government’s record on GLBT rights, while a number of human rights NGOs got involved on the side of the couple.

In a narrow four-to-three verdict, European Court judges found the couple’s complaint was not sustained, but the ruling contains precedents that may be useful in future cases.

In their verdict, the judges wrote, “The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex couples”.

“Moreover, this tendency has developed rapidly over the past decade.

“Nevertheless, there is not yet a majority of [European] States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes.”

Only six of the EU’s 27 member states have legalised same-sex marriage. Another 10 offer civil partnerships that convey the same legal status as marriage.

However, in the same ruling, the judges found that, “same-sex couples are just as capable as different-sex couples of entering into stable committed relationships”.

“Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.”

The court also found that same-sex relationships fall within the definition of family life.

“The Court considers it artificial to maintain the view that … 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.”