schalk and kopf v austria case brief

However, certain principles might be derived from the Court's case-law relating to transsexuals.51. 30141/04) JUDGMENT STRASBOURG 24 June 2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. So far the Court's case-law had considered homosexual relationships to fall within the notion of "private life" but there might be good reasons to include the relationship of a same-sex couple living together in the scope of "family life".80. Some were examined under Article 8 alone, namely cases concerning the prohibition under criminal law of homosexual relations between adults (see Dudgeon v. the United Kingdom, 22 October 1981, Series A no. Nevertheless, in a few countries, e.g., in the Netherlands and in Belgium, marriage between people of the same sex is legally recognized. v. France, cited above) and the right to succeed to the deceased partner's tenancy (Karner, cited above).88. Having identified a "relevantly similar situation" (paragraph 99), and emphasised that "differences based on sexual orientation require particularly serious reasons by way of justification" (paragraph 97), the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation (paragraph 80). As in the case of spouses, the partner who is in charge of the common household and has no income has legal authority to represent the other partner in everyday legal transactions (section 10). Declares by six votes to one admissible the applicants' complaint under Article 12 of the Convention;3. The Government did not argue, however, that the complaint was inadmissible as being incompatible ratione materiae. Furthermore, Article 12 grants the right to found a family.55. Johannesburg Office: +27 11 024 82 68 Material consequences cover the impact of registered partnership on different kinds of tax, health insurance, social security payments and pensions. 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". In addition it considered that, should they chose to divorce in order to allow the transsexual partner to obtain full gender recognition, the fact that the applicants had the possibility to enter into a civil partnership contributed to the proportionality of the gender recognition regime complained of.b. Nonetheless Article 8 read in conjunction with Article 14 should not be interpreted so as to require either access to marriage or the creation of alternative forms of legal recognition for same-sex partnerships.82. They argued that in the event that one partner in a homosexual couple died, the other was discriminated against since he would be in a much less favourable position under tax law than the surviving partner in a married couple.13. There is, however, no explicit requirement that domestic laws should facilitate such marriages. Regarding compliance with the requirements of Article 14 taken in conjunction with Article 8, the Government maintained that it was within the legislator's margin of appreciation whether or not same-sex couples were given a possibility to have their relationship recognised by law in any other form than marriage. CIJ - Commission Internationale de Juristes It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.FOR THESE REASONS, THE COURT1. The Austrian legislator had made the policy choice to give same-sex couples such a possibility. 2. The legal consequences of registered partnership vary from almost equivalent to marriage to giving relatively limited rights. 65731/01, § 52, ECHR 2006-VI).98. The European Court of Human Rights found in its Cossey judgment of 27 September 1990 (no. The domestic laws of the majority of states presuppose, in other words, that the intending spouses are of different sexes. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).5. The Court observes that the Government raised the question whether the applicants' complaint fell within the scope of Article 12, given that they were two men claiming the right to marry. They relied on Article 37 § 1 of the Convention which, so far as material, reads as follows: "1. In contrast, the Court's case-law has only accepted that the emotional and sexual relationship of a same-sex couple constitutes "private life" but has not found that it constitutes "family life", even where a long-term relationship of cohabiting partners was at stake. Its section 2 provides as follows: "A registered partnership may be formed only by two persons of the same sex (registered partners). 11313/02, 23 June 2009, both relating to the introduction of the Civil Partnership Act in the United Kingdom).106. v. France [GC], no. ” This marks a departure from the Court’s practise of referring cases with narrow majorities to the Grand Chamber and signifies a more prudent, self-restrained approach for the Court. Austria. The applicants and the Government each filed written observations on the admissibility and merits of the application. The non-governmental organisations answered that question in the affirmative: firstly, excluding same-sex couples from particular rights and benefits attached to marriage (such as for instance the right to a survivor's pension) without giving them access to any alternative means to qualify would amount to indirect discrimination (see Thlimmenos v. Greece [GC], no. As the Court noted in Schalk & Kopf v Austria (2010), “the scope of the margin 40016/98, § 37, ECHR 2003-IX), they argued that such a difference could only be justified by "particularly serious reasons". 259) and the discharge of homosexuals from the armed forces (see Smith and Grady v. the United Kingdom, nos. The provision has been unchanged since its entry into force on 1 January 1812.2. A child born out of such a relationship is ipso jure part of that "family" unit from the moment and by the very fact of his birth (see Elsholz v. Germany [GC], no. The Court observes that the Registered Partnership Act gives the applicants a possibility to obtain a legal status equal or similar to marriage in many respects (see paragraphs 18-23 above). 43546/02, § 92, ECHR 2008-..., and Christine Goodwin v. the United Kingdom [GC], no. In 2010, the ECtHR ruled on the case Schalk and Kopf v. Austria. 6. On 12 December 2003 the Constitutional Court (Verfassungs-gerichtshof) dismissed the applicants' complaint. However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Brussels Office: +32 472 71 45 05 The Court examined for the first time the issue of whether two persons who are of the same sex could claim to have the right to marry in the case of Schalk and Kopf v. Austria and found that In addition Croatia has a Law on Same-Sex Civil Unions which recognises cohabiting same-sex couples for limited purposes, but does not offer them the possibility of registration.30. We cannot agree with the majority that there has been no violation of Article 14 taken in conjunction with Article 8 of the Convention, for the following reasons.2. Consequently, the Court dismisses the Government's argument that the applicants can no longer claim to be victims of the alleged violation of Article 14 taken in conjunction with Article 8.3. 290; and also Johnston and Others v. Ireland, 18 December 1986, § 56, Series A no. The Court reiterates in this connection that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it (see F. v. Switzerland, cited above, § 31). A number of Directives are also of interest in the present case: European Council Directive 2003/86/EC of 22 September 2003, on … According to the Court's established case-law Article 12 secures the fundamental right of a man and woman to marry and to found a family. Consequently, there has been no violation of Article 12 of the Convention.III. ", "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.". In the absence of consensus, the State enjoyed a particularly wide margin of appreciation.47. Application in the present case54. In Schalk and Kopf vAustria1 the First Section of the European Court of Human Rights (ECtHR or ‘the Court’) had the opportunity to reflect upon the impact of recent developments across Europe extending marriage rights to same-sex cou- The Government of the United Kingdom asserted that the Court's case-law as it stood considered Article 12 to refer to the "traditional marriage between persons of the opposite biological sex" (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 66, Reports of Judgments and Decisions 1998-V). A number of Directives are also of interest in the present case: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), ...". The Court reiterates that Article 35 § 1 of the Convention requires that complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996-IV).69. Schalk and Kopf v. Austria , Application no. The Court is not convinced by that argument. At the time when the third-party Government submitted their observations only three member States permitted same-sex marriage, and in two others proposals to this effect were under consideration. There is a certain margin of appreciation as to the exact status conferred by the alternative means of recognition. In their oral pleadings, reacting to the introduction of the Registered Partnership Act, the applicants argued that the remaining differences between marriage on the one hand and registered partnership on the other were still discriminatory. As the Government themselves pointed out, the said Act allows same-sex couples to obtain only a status similar or comparable to marriage, but does not grant them access to marriage, which remains reserved for different-sex couples.38. The third party interveners' submissions45. In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage.64. 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:PROCEDURE1. The ECtHR held that unmarried same-sex couples must generally be granted the same rights and obligations as unmarried different-sex couples. To this day, it is still considered the most recent and leading case regarding Article 12 ECHR (the right to marry) and same-sex couples. The Court concluded that it fell within the State's margin of appreciation how to regulate the effects of the change of gender on pre-existing marriages. They submitted that the matter might be regarded as being resolved and that it was justified to strike the application out of the Court's list. 30141/04)JUDGMENTSTRASBOURG24 June 2010FINAL22/11/2010This judgment has become final under Article 44 § 2 of the Convention. Violation of Article 8 (right to protection of private and family life) Sporer v. Austria 03.02.2011 . Like married couples, registered partners are expected to live together like spouses in every respect, to share a common home, to treat each other with respect and to provide mutual assistance (section 8(2) and (3)). 142; and Modinos v. Cyprus, 22 April 1993, Series A no. Agreeing with the Government on the applicability of Article 14 taken in conjunction with Article 8, they asserted that just like differences based on sex, differences based on sexual orientation required particularly serious reasons for justification. On 3rd June 2010 the European Court considered for the first time the issue of whether two people of the same sex can claim to have a right to marry. In the case of Karner (cited above, § 33), concerning the succession of a same-sex couples' surviving partner to the deceased's tenancy rights, which fell under the notion of "home", the Court explicitly left open the question whether the case also concerned the applicant's "private and family life".93. 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. Refworld is the leading source of information necessary for taking quality decisions on refugee status. The applicants argued that in today's society civil marriage was a union of two persons which encompassed all aspects of their lives, while the procreation and education of children was no longer a decisive element. (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).". In essence they relied on the Court's case-law according to which the Convention is a living instrument which is to be interpreted in present-day conditions (see E.B. Insofar as the applicants appear to contend that, if not included in Article 12, the right to marry might be derived from Article 14 taken in conjunction with Article 8, the Court is unable to share their view. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. The justification for that particular difference in treatment between different-sex and same-sex couples was laid down in Article 12 of the Convention itself.83. The applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa. This article is within the scope of WikiProject Austria, an attempt to build a comprehensive and detailed guide to articles about Austria on Wikipedia. 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 (see Courten, cited above; see also M.W. Two further cases are of interest in the present context: (Parry v. the United Kingdom (dec.), no. In Christine Goodwin v. the United Kingdom [GC] (no. The Government contested that argument.A. P.O.