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Strasbourg Court once again tries to impose institutionalization of same-sex unions

Published: 05.10.2023

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- The European Court of Human Rights has ruled that Bulgaria's failure to institutionalize same-sex unions violates the right to respect for family and private life.

- Bulgaria is the next country after Italy, Ukraine, Romania and Russia to be forced by the ECHR to institutionalize same-sex unions. 

- The Court leaves states free only to choose the form of institutionalization - same-sex unions do not have to be called "marriages."

- The Ordo Iuris Institute intervened in the case as a friend of the court, submitting an opinion pointing to the need to recognize the wide freedom of states in regulating such a sensitive issue.

The case involved a Bulgarian couple who married in the UK in 2016. Upon their return to Bulgaria, one of the women requested that it be recorded in the civil registry that she was "married."  The mayor in charge of the registry refused, indicating that making such a change would be contrary to the Bulgarian legal order, in which marriage is defined as the union of a man and a woman (Article 5 in conjunction with Article 4 §1 of the Family Code and Article 46 of the Bulgarian Constitution).  The mayor's decision was approved by the Sofia Administrative Court and the Supreme Administrative Court.

In 2020, the women filed a complaint with the ECHR, alleging that Bulgaria had violated their right to respect for family and private life (Article 8 of the Convention), the right to marry (Article 12 of the Convention) and the prohibition of discrimination (Article 14 of the Convention). In response, the Bulgarian government filed a motion to dismiss the complaint, stressing that the lack of regulation of same-sex unions is not due to a desire to protect the traditional family, but solely to the lack of readiness of a society that is only just maturing to "naturally accept these issues," so "any intervention by an international court in this process would be premature."

The Ordo Iuris Institute intervened as a friend of the court in the proceedings before the Court. In its opinion, it pointed out that states defining marriage as the union of a man and a woman can refuse to recognize same-sex unions formalized abroad under the so-called public policy clause (ordre public).

In 2023. ECHR ruled that Bulgaria violated Article 8 of the Convention because it failed to guarantee same-sex unions "legal recognition and protection." At the same time, the Court stressed that the Convention "does not guarantee a homosexual couple the right to marriage."

Currently, 30 member states of the Council of Europe already provide same-sex couples with the opportunity to formalize their union - 18 of them in the form of marriage, and 12 in the form of a civil partnership. Only 16 countries - including Poland - protect the natural identity of the family based on the union of a man AND a woman.

The Institute's experts point out that, in a strict sense, the judgment does not explicitly deal with the impossibility of marriage or civil partnership for same-sex couples, but only with the formal change of marital status of such a couple who have married abroad. However, it is clear from the reasons for the judgment that the Court treated the problem more broadly as a failure to comply with the "obligation" to institutionalize same-sex unions, which it derived several years ago from Article 8 of the Convention. Thus, Bulgaria is another country after Italy, Romania, Russia and Ukraine that the Court is forcing to institutionalize same-sex unions. In this context, the ECHR's judgment is not surprising, as it is part of a well-established line of jurisprudence, which, however, we have consistently criticized, pointing out that the family model envisioned by the Convention's founders was based on the union of a man and a woman, not on same-sex unions. The Institute also recalled that according to the Court's own jurisprudence, states have more freedom to regulate controversial issues, which certainly include the status of same-sex unions. What may be surprising, however, is the ambiguous position of the Bulgarian government, which, on the one hand, opposes the institutionalization of same-sex unions, but, on the other, clearly suggests that it allows it in the future. 

ECHR judgment of September 5, 2023, Koilova and Babulkova v. Bulgaria.

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