07 Nov Η ΑΠΟΦΑΣΗ ΒΑΛΛΙΑΝΑΤΟΣ ΚΑΤΑ ΕΛΛΑΔΟΣ
CASE OF VALLIANATOS AND OTHERS v. GREECE
(Applications nos. 29381/09 and 32684/09)
7 November 2013
This judgment is final but it may be subject to editorial revision.
In the case of Vallianatos and Others v. Greece,
The European Court of Human Rights (Grand Chamber), sitting as a Grand Chamber composed of:
Dean Spielmann, President,
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Aleš Pejchal, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 16 January and 11 September 2013,
Delivers the following judgment, which was adopted on the last‑mentioned date:
1. The case originated in two applications (nos. 29381/09 and 32684/09) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 and 25 May 2009 respectively. The first application (no. 29381/09) was lodged by two Greek nationals, Mr Grigoris Vallianatos and Mr Nikolaos Mylonas, born in 1956 and 1958 respectively, and the second (no. 32684/09) by six Greek nationals, C.S., E.D., K.T., M.P., A.H. and D.N., and by the association Synthessi – Information, Awareness‑raising and Research, a legal entity based in Athens.
2. The applicants in application no. 29381/09 were represented by Greek Helsinki Monitor, a non-governmental organisation based in Glyka Nera (Athens). The applicants in application no. 32684/09 were represented by Mr N. Alivizatos and Mr E. Mallios, lawyers practising in Athens. The Greek Government (“the Government”) were represented by their Deputy Agents, Ms A. Grigoriou and Ms G. Papadaki, Advisers at the State Legal Council, and by Mr D. Kalogiros, Legal Assistant at the State Legal Council.
3. The applicants alleged in particular, relying on Article 8 taken in conjunction with Article 14, that the fact that the “civil unions” introduced by Law no. 3719/2008 were designed only for couples composed of different‑sex adults had infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples, to the detriment of the latter.
4. The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 3 February 2011 that Section decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). Lastly, the acting President of the Chamber granted the request for anonymity made by the first six applicants in application no. 32684/09 (Rule 47 § 3).
5. On 11 September 2012 the Chamber, composed of Nina Vajić, Peer Lorenzen, Elisabeth Steiner, Mirjana Lazarova Trajkovska, Julia Laffranque, Linos-Alexandre Sicilianos and Erik Møse, judges, and Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment after being consulted (Article 30 of the Convention and Rule 72). The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
6. The applicants and the Government each filed written observations on the admissibility and merits of the applications (Rule 59 § 1). In addition, third-party comments were received from the Centre for Advice on Individual Rights in Europe (the AIRE Centre), the International Commission of Jurists (ICJ), the Fédération internationale des Ligues des Droits de l’Homme (FIDH) and the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 January 2013 (Rule 59 § 3).
There appeared before the Court:
(a) for the respondent Government
Ms A. Grigoriou, Adviser, State Legal Council,
Mr D. Kalogiris, Legal Assistant, State Legal Council,
Ms M. Germani, Legal Assistant, State Legal Council,
(b) for the applicants
Ms C. Mécary, Lawyer,
Mr N. Alivizatos, Lawyer, Counsel,
Mr P. Dimitras,
Mr E. Mallios, Lawyer, Advisers.
The Court heard addresses by Ms Germani, Ms Mécary and Mr Alivizatos.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicants in application no. 29381/09 live together as a couple in Athens. In the case of application no. 32684/09, the first and second applicants and the third and fourth applicants have lived together for a long time as couples in Athens. The fifth and sixth applicants are in a relationship together but for professional and social reasons do not live together. As shown by their bank statements, the sixth applicant pays the fifth applicant’s social-security contributions. The seventh applicant is a not‑for-profit association the aims of which include providing psychological and moral support to gays and lesbians.
9. On 26 November 2008 Law no. 3719/2008, entitled “Reforms concerning the family, children and society”, entered into force. It made provision for the first time in Greece for an official form of partnership other than marriage, known as “civil unions” (σύμφωνο συμβίωσης). Under section 1 of the Law, such unions can be entered into only by two adults of different sex.
10. According to the explanatory report on Law no. 3719/2008, the introduction of civil unions reflected a social reality, namely cohabitation outside marriage, and allowed the persons concerned to register their relationship within a more flexible legal framework than that provided by marriage. The report added that the number of children born in Greece to unmarried couples living in de facto partnerships had increased over time and by then represented around 5% of all children being born in the country. It further noted that the position of women left without any support after a long period of cohabitation, and the phenomenon of single-parent families generally, were major issues which called for a legislative response. However, the report pointed out that the status of religious marriage remained unparalleled and, alongside civil marriage, represented the best option for couples wishing to found a family with a maximum of legal, financial and social safeguards. The report also made reference to Article 8 of the Convention, which protected non-marital unions from the standpoint of the right to private and family life, and observed that a number of European countries afforded legal recognition to some form of registered partnership for different-sex or same-sex couples. Without elaborating further, it noted that civil unions were reserved for different-sex adults. It concluded that they represented a new form of partnership and not a kind of “flexible marriage”. The report considered that the institution of marriage would not be weakened by the new legislation, as it was governed by a different set of rules.
11. A lively debate preceded the implementation of Law no. 3719/2008. The Church of Greece spoke out officially against it. In a press release issued on 17 March 2008 by the Holy Synod, it described civil unions as “prostitution”. The Minister of Justice, meanwhile, addressed the competent parliamentary commission in the following terms:
“… We believe that we should not go any further. Same-sex couples should not be included. We are convinced that the demands and requirements of Greek society do not justify going beyond this point. In its law-making role, the ruling political party is accountable to the people of Greece. It has its own convictions and has debated this issue; I believe this is the way forward.”
12. The National Human Rights Commission, in its observations of 14 July 2008 on the bill, referred in particular to the concept of family life, the content of which was not static but evolved in line with social mores (see paragraphs 21-24 below).
13. On 4 November 2008 the Scientific Council (Επιστημονικό Συμβούλιο) of Parliament, a consultative body reporting to the Speaker of Parliament, prepared a report on the bill. It observed in particular, referring to the Court’s case-law, that the protection of sexual orientation came within the scope of Article 14 of the Convention and that the notion of the “family” was not confined solely to the relationships between individuals within the institution of marriage but, more generally, could encompass other ties outside marriage which amounted de facto to family life (page 2 of the report).
14. During the parliamentary debate on 11 November 2008 on the subject of civil unions the Minister of Justice merely stated that “society today [was] not yet ready to accept cohabitation between same-sex couples”. Several speakers stressed that Greece would be violating its international obligations and, in particular, Articles 8 and 14 of the Convention by excluding same-sex couples.
15. On 27 September 2010 the National Human Rights Commission wrote to the Minister of Justice reiterating its position as to the discriminatory nature of Law no. 3719/2008. In its letter, the Commission recommended drafting legislation extending the scope of civil unions to include same-sex couples.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Domestic law and practice
1. Law no. 3719/2008
16. The relevant sections of Law no. 3719/2008 read as follows:
Conclusion of a civil union
“A contract between two different-sex adults governing their life as a couple (“civil union”) shall be entered into by means of a notarised instrument in the presence of the parties. The contract shall be valid from the date on which a copy of the notarised instrument is lodged with the civil registrar for the couple’s place of residence. It shall be recorded in a special civil register.”
“1. Full legal capacity is required in order to enter into a civil union.
2. A civil union may not be entered into: (a) if either of the persons concerned is already married or party to a civil union, (b) between persons who are related by blood … or by marriage … and (c) between an adopter and adoptee.
3. Any violation of the provisions of this section shall render the civil union null and void.”
Nullity of the civil union
“The parties and any person asserting a legitimate family or financial interest may invoke a ground of nullity of the civil union under the preceding section. The prosecutor may apply of his or her own motion for the civil union to be annulled if it breaches public order.”
“1. The civil union shall be dissolved: (a) by an agreement between the parties in the form of a notarised instrument signed in their presence, (b) by means of a unilateral notarised declaration, after service on the other party by a process server and (c) by operation of law if the parties to the civil union marry or if one of the parties marries a third party.
2. The dissolution of the civil union shall take effect once the notarised instrument or the unilateral declaration has been deposited with the civil registrar at the place of registration of the civil union.”
“The civil union shall not change the (family) name of the parties. Each party may, with the consent of the other party, use the other’s surname or add it to his or her own in social relations.”
“The parties’ financial relations, particularly regarding any assets they acquire during the lifetime of the civil union (after-acquired assets), may be regulated by the civil union contract or by a subsequent notarised instrument. If no agreement exists on after-acquired assets, upon dissolution of the civil union each party shall have a claim in respect of any assets the other party has contributed. No such claim shall vest in the heirs of the claimant; it may not be assigned or transferred by succession but may be made against the heirs of the debtor. The claim shall expire two years after dissolution of the civil union.”
Maintenance obligation after dissolution
“1. In the civil union contract or a subsequent notarised instrument, one of the parties or both parties mutually may undertake to pay maintenance only to cover the other in the event that, after dissolution of the union, the other party has insufficient income or assets to provide for his or her own upkeep. A party who, having regard to his or her other obligations, is unable to pay maintenance without compromising his or her own upkeep shall be exempt from the obligation to pay maintenance. The obligation shall not pass to the heirs of the debtor.
2. As regards the right to maintenance, the person entitled to maintenance by virtue of the civil union shall rank equally with the divorced spouse of the debtor.
3. After dissolution of the civil union, the party liable for payment of maintenance may not rely on that obligation in order to be exempted, in full or in part, from his or her obligation to contribute [to the maintenance of] his or her spouse or minor children or to pay maintenance for them.
4. Without prejudice to paragraphs 2 and 3, the contractual obligation referred to in paragraph 1 shall override the obligation to provide maintenance for persons other than the beneficiary [of the maintenance payments] if the latter, after dissolution of the union, has insufficient resources to provide for his or her own upkeep.”
Presumption of paternity
“1. The putative father of any child born during the lifetime of the civil union or within three hundred days of its dissolution or annulment shall be the man with whom the mother entered into the union. That presumption may be rebutted only by an irreversible judicial decision. Articles 1466 et seq. of the Civil Code and Articles 614 et seq. of the Code of Civil Procedure shall be applicable by analogy.
2. The nullity or annulment of the civil union shall have no effect on the paternity of the children.”
“Any child born during the lifetime of the civil union or within three hundred days of its dissolution or annulment shall bear the surname chosen by its parents by means of a joint and irrevocable declaration contained in the civil union contract or in a subsequent notarised instrument drawn up before the birth of the first child. The surname chosen shall be given to all the children and must be the surname of one of the parents or a combination of their surnames. In no circumstances may it be made up of more than two surnames. If no declaration is made, the child shall be given a composite surname made up of the surnames of both parents. If the surname of one or both parents is a composite name, the child’s surname shall be formed by the first of the two names.”
“1. Parental responsibility for a child born during the lifetime of the civil union or within three hundred days of its dissolution or annulment shall be held by both parents and exercised jointly. The provisions of the Civil Code concerning parental responsibility for children born within marriage shall be applicable by analogy.
2. If the civil union is dissolved for the reasons referred to in sections 2 and 4 of this Law, Article 1513 of the Civil Code shall apply by analogy for the purposes of parental responsibility.”
“1. After dissolution of the civil union as a result of death, the survivor shall be entitled to inherit on intestacy. If that survivor is in competition with heirs of the first class of persons entitled to inherit, he or she shall inherit one-sixth of the partner’s estate. If in competition with heirs of any other classes, he or she shall inherit one‑third, and if one of the partners dies intestate and without other heirs who may be entitled to inherit on intestacy, the survivor shall inherit the entire estate.
2. The survivor shall be entitled to a legally reserved portion of the estate equal to half the share that would be due to him or her on intestacy. …
3. Articles 1823 et seq., 1839 et seq. and 1860 of the Civil Code shall apply by analogy.”
“This Law shall apply to all civil unions entered into in Greece or before a Greek consular authority. In all other cases the law designated by the rules of international private law shall apply.”
2. Civil Code
17. The relevant Articles of the Civil Code provide as follows:
“Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement …
In addition, the right to claim damages on the basis of the provisions concerning unlawful acts shall not be excluded.”
“In cases covered by the preceding two Articles, the court, in a judgment delivered at the request of the person whose rights have been infringed and taking account of the nature of the infringement, may also order the person at fault to afford redress for the non-pecuniary damage caused. This shall consist in payment of a sum of money as well as a public announcement and any other measure that is appropriate in the circumstances.”
“Any person who, in breach of the law, causes damage to another by his or her fault shall be obliged to afford redress.”
“Irrespective of any compensation due in respect of the pecuniary damage caused by an unlawful act, the court may award a reasonable amount, based on its own assessment, in respect of non-pecuniary damage. Beneficiaries under this rule shall include those whose health has been impaired, whose honour has been infringed, who have been subjected to indecent assault or who have been deprived of their liberty. In the event of loss of life, the compensation may be paid to the victim’s family in the form of damages for pain and suffering.”
Entitlement to maintenance payments shall cease if the beneficiary remarries or is in a stable relationship or a de facto partnership with another person …”
3. Introductory Law to the Civil Code
18. Sections 104 and 105 of the Introductory Law to the Civil Code provide as follows:
“The State shall be liable, in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.”
“The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible and the State shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”
19. These provisions establish the concept of a special prejudicial act in public law, creating State liability in tort. Such liability arises out of unlawful acts or omissions, which may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts. The admissibility of an action for damages is subject to one condition: the unlawfulness of the act or omission in question.
20. Judgments nos. 1141/1999, 909-910/2007, 1011/2008, 3088/2009, 169/2010 and 2546/2010 of the Supreme Administrative Court are examples of judicial rulings concerning the State’s liability in tort in the event of unconstitutionality of a law. In particular, in judgment no. 1141/1999 concerning legislation revoking the right granted to parents of large families to operate public service vehicles, the Supreme Administrative Court dismissed the claim for damages on the grounds that the law applied was not unconstitutional. In judgments nos. 909-910/2007 and 169/2010, the same court recognised that the State had civil liability on account of the erection of advertising hoardings along the public highway in breach of the Vienna Convention on Road Signs and Signals. In judgment no. 1011/2008, concerning a claim for compensation on account of legislation limiting a property owner’s right to build on his property, the Supreme Administrative Court dismissed the application, finding that the State’s civil liability could not be engaged if a provision enacted in breach of a higher-ranking legal rule was intended to serve the public interest. In judgment no. 3088/2009, it recognised the State’s obligation to compensate the persons concerned for the legislature’s omission to enact provisions recognising the professional qualifications of a particular category of graduates of the higher technical institutes. Lastly, in judgment no. 2546/2010, the Supreme Administrative Court held that the State was civilly liable because it had awarded compensation to five farmers expressly named in a Law following storm damage that destroyed their crops, while omitting to compensate a sixth farmer who had incurred loss in the same conditions.
4. Report of the National Human Rights Commission
21. This Commission was established in 1998 and placed under the authority of the Prime Minister. One of its objectives is to prepare and publish reports on human rights protection, either on its own initiative or at the request of the Government, Parliament or non-governmental organisations.
22. On 14 July 2008 the Commission unanimously adopted a report setting forth proposals regarding the bill entitled “Reforms concerning the family, children and society”. The Commission stated that it could not understand why the bill bore this title given that it authorised a new form of non-marital partnership. It added that the bill amended the family-law provisions of the Civil Code in a fragmentary, hasty and inadequately reasoned manner, without prior public consultation of the social, academic and professional stakeholders.
23. In its report the Commission also observed that certain passages in the explanatory report on the bill implied that the authors saw civil unions as a legal institution ranking below that of marriage. It added that, despite referring explicitly to the fact that other European countries had introduced civil unions for same-sex couples, the explanatory report offered no justification for excluding same-sex couples from the scope of the bill.
24. With particular reference to the last point, the Commission noted that it had been calling on the competent authorities since 2004 to grant legal recognition to civil partnerships between same-sex couples. In its proposals, the Commission based its arguments on the evolution of international law on the subject, referring in particular to the Court’s case‑law on Articles 8 and 14 of the Convention. It considered that the Greek State had missed a unique opportunity to remedy the discrimination against same-sex couples with regard to the possibility of entering into legally recognised civil partnerships. It stressed that the legislation made reference to de facto partnerships as an alternative to marriage for different‑sex couples, and considered that the introduction of civil unions was more suited to the needs of same-sex couples than different-sex couples.
B. Comparative, European and international law
1. Comparative law material
25. The comparative law material available to the Court on the introduction of official forms of non-marital partnership within the legal systems of Council of Europe member States shows that nine countries (Belgium, Denmark, France, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden) recognise same-sex marriage. In addition, seventeen member States (Andorra, Austria, Belgium, the Czech Republic, Finland, France, Germany, Hungary, Iceland, Ireland, Liechtenstein, Luxembourg, the Netherlands, Slovenia Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples. Denmark, Norway and Sweden recognise the right to same-sex marriage without at the same time providing for the possibility of entering into a civil partnership.
26. Lastly, Lithuania and Greece are the only Council of Europe countries which provide for a form of registered partnership designed solely for different-sex couples, as an alternative to marriage (which is available only to different-sex couples).
2. Relevant Council of Europe materials
27. In its Recommendation 924 (1981) on discrimination against homosexuals, the Parliamentary Assembly of the Council of Europe (PACE) criticised the various forms of discrimination against homosexuals in certain member States of the Council of Europe. In Recommendation 1474 (2000) on the situation of lesbians and gays in Council of Europe member states, it called on member States, among other things, to enact legislation making provision for registered partnerships. Furthermore, in Recommendation 1470 (2000) on the more specific subject of the situation of gays and lesbians and their partners in respect of asylum and immigration in the member states of the Council of Europe, it recommended to the Committee of Ministers that it urge member States, inter alia, “to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnership and families are treated on the same basis as heterosexual partnerships and families …”.
28. Resolution 1728 (2010) of the Parliamentary Assembly of the Council of Europe, adopted on 29 April 2010 and entitled “Discrimination on the basis of sexual orientation and gender identity”, calls on member States to “ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, as already recommended by the Assembly in 2000”, by providing, inter alia, for:
“16.9.1. the same pecuniary rights and obligations as those pertaining to different‑sex couples;
16.9.2. ‘next of kin’ status;
16.9.3. measures to ensure that, where one partner in a same-sex relationship is foreign, this partner is accorded the same residence rights as would apply if she or he were in a heterosexual relationship;
16.9.4. recognition of provisions with similar effects adopted by other member states;”
29. In Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers recommended that member States:
“1. examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity;
2. ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them;
30. The Recommendation also observed as follows:
“23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same‑sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights.
24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.
25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.”
3. European Union law
31. Articles 7, 9 and 21 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and entered into force on 1 December 2009, read as follows:
“Everyone has the right to respect for his or her private and family life, home and communications.”
“The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”
“1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”
32. The Commentary of the Charter of Fundamental Rights of the European Union, prepared in 2006 by the EU Network of Independent Experts on Fundamental Rights, states as follows with regard to Article 9 of the Charter:
“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 coupl